UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE 


LAW   OF   MORTGAGES 


REAL  AND  PERSONAL  PROPERTY. 


BY 

FRANCIS  HILLIARD, 

AUTHOR  OF   "  THE   LAW  OF   TORTS,"    ETC.   ETC. 


"  The  case  of  mortgages  is  one  of  the  most  splendid  instances  in  the  history  of  our  jurisprudence 
of  the  triumph  of  equitable  principles  over  technical  rules,  and  of  the  homage  which  those  prin- 
ciples hare  received  by  their  adoption  in  the  Courts  of  Law."  —  Chancellor  Kent. 


THIRD   EDITION,   REVISED   AND    GREATLY   ENLARGED. 


IN  TWO  VOLUMES. 
VOL.  L 


BOSTON: 
LITTLE,  BROWN  AND  COMPANY. 

1864. 


Entered  according  to  Act  of  Congress,  in  the  year  1864,  by 

Francis  Hilliakd, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


T 


RIVRRBIDE,     CAMBRIDGK: 
PKIWTKD     UT    II.    O.    IIOUOIITOM    AND    COMPANr. 


PREFACE  TO   THE  FIRST  EDITION. 


There  are  few  titles  in  the  law,  of  higher  importance 
in  the  United  States,  than  that  of  Mortgage.  With  the 
increase  and  extension  of  population,  intercourse,  and 
trade,  and  the  consequent  enlarged  connection  of  indi- 
viduals in  the  relation  of  creditor  and  debtor,  the  cases 
in  which  real  or  personal  estate  is  conditionally  trans- 
ferred, as  security  for  debt,  become  indefinitely  multi- 
plied. The  explanation  of  this  fact  is  found  in  the  con- 
sideration, that  both  creditor  and  debtor  generally  pre- 
fer a  conditional  to  an  absolute  transfer ;  the  former, 
because  he  seeks  payment  of  his  debt,  not  an  acquisi- 
tion of  property ;  and  the  latter,  because  he  may  thus 
postpone  a  pressing  claim,  and  at  the  same  time  avoid 
a  sacrifice  of  his  estate. 

Not  only  has  the  transaction  in  question  become  a 
\QYy  frequent  one,  but  the  relations  which  it  involves  or 
induces  are  peculiarly  various  and  complicated ;  leading 
to  nice  and  difficult  questions,  which  constantly  require 
an  appeal  to  legal  tribunals  for  their  settlement.  An 
absolute  transfer  of  property  wholly  divests  the  grantor 
of  his  title,  and  vests  in  the  grantee  the  same  simple 
and    unqualified    ownership.      But  a  mortgage  confers 


77S'7S6 


iv  PREFACE. 

ui>on  the  mortgagee  a  title,  and  at  the  same  time  leaves 
a  title  in  the  mortgagor.  The  relation  between  these 
two  parties  themselves  is  attended  with  many  obscure 
incidents  and  fine  distinctions ;  and  when  either  party 
transfers  his  estate,  and  more  especially  when  such 
alienation  occurs  on  both  sides,  the  state  of  the  title  is 
liable  to  become  still  more  involved.  Accordingly,  it 
will  bo  found  that  there  is  no  subject,  upon  which  new 
combinations  of  facts  in  reference  to  one  or  both  of  the 
parties  more  continually  arise ;  calling  for  novel  appli- 
cations of  old  principles,  or  a  judicial  establishment  of 
new  rules,  founded  upon  analogy,  but  never  before  dis- 
tinctly propounded  and  settled.  The  title  of  mortgage 
is  rapidly  becoming  one  of  the  most  copious  and  volu- 
minous in  the  law. 

It  is  the  aim  of  the  author,  in  the  following  work,  to 
embody  more  or  less  at  length  all  the  English  and 
American  decisions  upon  the  subject,  together  with  the 
statutory  provisions  of  the  several  States.  The  plan  is 
sucli  as  to  make  the  book  equally  applicable  in  all  the 
States  of  the  Union. 

It  is  believed,  that  the  present  work  is  the  first  at- 
tempt to  present  a  systematic  view  of  the  Law  o{  Mort- 
(jagcs  of  rersonal  Vropcrifj.  Until  a  recent  period,  this 
form  of  mortgage  has  been  infrequent,  and  given  occa- 
sion to  few  questions  and  decisions.  Without  the  se- 
curity afforded  by  regiairaiion,  which  is  a  practice  now 
very  generally  adopted  in  the  United  States,  a  condi- 
tional traiLsfer  of  chattels,  which  allows  the  seller  to 
reujain  in  possession  and  use  of  the  property,  has  un- 
douljtedly  been  found  to  a  great  degree  impracticable ; 


PREFACE. 


leading  to  the  greatest  confusion  and  uncertainty  of 
title,  to  frauds  upon  creditors  between  the  mortgagor 
and  mortgngee,  and  also  to  frauds  by  the  former  upon 
the  latter,  where  the  mortgage  itself  was  a  fair  and 
honest  transaction.  The  recording  system  has  afforded 
a  remedy  for  these  evils ;  and  consequently  the  mort- 
gage of  personal  property,  from  being  a  rare  transac- 
tion, is  becoming  one  of  almost  daily  occurrence  ;  and 
the  conflicting  rights  of  the  parties,  and  more  espe- 
cially of  third  persons  claiming  under  one  or  both  of 
them,  the  construction  of  statutes,  and  the  applica- 
tion of  the  principles  pertaining  to  mortgages  of  real 
property,  with  such  modifications  as  are  demanded 
by  the  different  nature  of  the  subject-matter,  —  give 
rise  to  numerous  and  continually  multiplying  ques- 
tions for  judicial  decision.  A  large  space  in  the  pres- 
ent work  is  occupied  with  this  branch  of  the  general 
subject. 

The  plan  of  the  book  is  threefold  :  first,  to  arrange 
the  heads  or  topics  in  natural  and  philosophical  order, 
avoiding,  as  far  as  possible,  the  mixing  up  together  of 
subjects  which  properly  belong  apart,  or  the  separation 
of  those  which  ought  to  be  treated  in  connection  ;  sec- 
ond, facility  of  reference  to  each  and  every  part  of  the 
work,  by  means  of  this  arrangement,  and  of  a  very  co- 
pious index ;  and  third,  the  incorporation  of  decided 
cases,  including  the  facts  and  the  opinions  of  judges,  to 
such  an  extent  as  to  supersede,  in  a  great  measure,  the 
necessity  of  reference  to  the  original  reports  them- 
selves. 


VI  PREFACE. 

The  author  trusts,  that  the  work  may  not  be  found 
wanting,  in  the  all-important  qualities  of  systematic  ar- 
rangement and  accurac}^  of  citations  and  references;, 
and  that  it  may  in  some  good  degree  supply  the  defect 
which  has  long  existed  in  the  library  of  every  Ameri- 
can lawyer. 

Boston,  December,  1852. 


PREFACE  TO  THE  THIRD  EDITION. 


To  this  edition  the  late  cases  have  been  copiously 
added ;  and  incorporated,  without  any  marks  of  distinc- 
tion, into  the  body  of  the  tex^t  and  notes.  Late  stat- 
utes, with  the  possibility  of  omission  necessarily  aris- 
ing from  their  great  number  and  variety,  have  also 
been  inserted  or  referred  to. 

Boston,  1864. 


CONTENTS. 


CHAPTER  I. 

Page 
Definition  of  a  Mortgage,  etc 1-33 

1.  Definition  of  a  mortgage.  Mortgage  for  the  purchase-money.  Distinc- 
tion between  a  mortgage  and  the  vivum  vadium,  &c. 

4.  VVhat  may  be  mortgaged. 

5.  Parties  to  a  mortgage  :  aliens  ;  married  women ;  infants  ;  joint  tenants,  &c. 
27.  Early  construction  of  the  condition  of  a  mortgage;  performance,  tender,  &c. 
36.  Form  of  expressing  the  condition  ;  stipulation  for  reconveyance,  &c. 

38.  Mortgages  for  j'ears  ;  mortgage  of  leaseholds. 

39.  Jurisdiction  of  Courts  of  Equity  over  mortgages. 
43.  Equity  of  redemption. 

CHAPTER  11. 

Defeasances 34-48 

1.  Nature  and  history  of  defeasances. 

5.  Deed  and  defeasance  must  be  concurrent ;  whether  the  date  of  both  must 
be  the  same. 

7.  Language  of  a  defeasance. 

9.  Form,  and  mode  of  execution,  of  a  defeasance ;  whether  a  seal  is  necessary. 

10.  Defeasances  in  the  United  States. 

11.  Recording  of  defeasances. 

CHAPTER  HI. 
Parol  Defeasances      ......         49-66 

Whether  a  mortgage  can  be  created  by  parol  agreement,  or  proved  by  parol 
evidence.  Doctrines  of  law  and  equity  upon  the  subject.  Practice  in  the  United 
States. 

CHAPTER  IV. 

Doctrine  of  Equity  in  the  Construction  of  the  Con- 
dition OF  A  Mortgage.  Restriction  upon  the  Right 
of  Redmeption,  etc.      ......    67-94 

1.  The  right  of  redemption  cannot  be  restricted. 

6.  Though  the  condition  is  contained  in  a  separate  defeasance. 


X  CONTENTS. 

7.  Or  informallj'  expressed. 

8.  Application  of  the  rule  to  collateral  or  subsequent  negotiations  between 
the  parties. 

9.  Not  applicable  in  case  of  family  settlements. 

10.  Exception  in  case  of  corporations. 

11.  Kelease  of  the  equity  of  redemption,  or  cancelling  of  a  defeasance ;  whether 
valid. 

24.  Contract  to  pay  more  than  the  mortgage  debt  and  interest. 
26.  Subsequent  agreement  to  limit  the  time  of  redemption. 
28.  The  mortgagor  has  the  benefit  of  any  new  acquisitions  m.-^de  by  the  mort- 
gagee. 

31.  Case  of  Flagg  v.  Mann. 

33.  Conditional  assignment  of  a  mortgage. 

CHAPTER  V. 

Conditional  Sale,  as  distinguished  from  a  Mort- 
gage         95-107 

CHAPTER  VI. 

Personal  Liability  of  the  Mortgagor,  etc.  108-127 

1.  Personal  liability  of  the  mortgagor ;  whether  necessary  to  constitute  a 
mortgage  ;  whether  the  deed  itself  creates  such  liability,  &c. 

26.  Mortgages  for  support  and  maintenance,  &c. 

28.  Covenant  or  condition  for  payment  of  the  debt,  how  construed.  Covenants 
for  title  in  a  mortgage.  Mutual  relation  and  etfect  of  the  covenants  in  the  deed 
and  the  mortgage.     Estoppel,  Rebutter,  &c. 

CHAPTER  Vn. 
Power  of  Sale 128-149 

CHAPTER  VHL 

Nature  of  the  Title  and  Estate  of  the  Mort- 
gagor              150-177 

1.  The  mortgagor  remains  the  real  owner,  till  breach  of  condition,  entry  of 
the  mortgagee,  or  foreclosure. 

2.  Kemarks  of  judges  and  elementary  writers  upon  this  subject. 

5.  Qualifications  of  the  general  rule  ;  how  far  the  mortgagee  may  be  called 
owner. 

6.  A  mortgage  is  not  an  alienation  of  the  land,  or  revocation  of  a  devise. 

15.  Mortgagor  may  maintain  a  real  action,  as  owner. 

16.  And  gains  a  settlement,  and  other  civil  privileges. 

17.  His  possession  is  not  adverse. 

18.  The  mortgagee,  in  general,  has  the  right  of  immediate  possession. 

20.  When  he  lias  not  this  right ;  agreement  for  the  possession  of  the  mort- 
gagor, how  proved  ;  when  implied  ;  mortgages  for  support,  &.c. 

CHAPTER  IX. 

Nature  of  the  Mortgagor's  Interest,  while  left 

in  Possession 178-225 

1.   Whether  tlie  mortgagor  is  a  tenant,  receiver,  agent,  &c. 
y.  Remedies  of  the  mortgagee  for  rent,  and  for  obtaining  possession.    Notice 
to  quit,  whether  necessary. 


CONTENTS.  xi 

12.  Doctrine  in  the  United  States. 

18.  Lease  by  the  mortgagor  ;  respective  titles  of  mortgagee,  mortgagor,  and 
lessee  ;  case  of  Keech  v.  Hall. 

35.  Distinction  between  leases  made  after,  and  before,  the  mortgage. 

38.  Joint  lease  by  mortgagor  and  mortgagee  ;  covenants  in  the  lease  of  a 
mortgagor,  whether  assignable,  &c. 

45.  General  summary. 

46.  Liability  of  a  mortgagee  of  leasehold  upon  the  covenants  ;  case  of  Eaton 
V.  Jacques. 

CHAPTER  X. 

Waste    by    the    Mortgagor   or    Mortgagee,  and 
Remedies   therefor       .....         226-234 

1.  The  mortgagor  cannot  commit  waste. 

2.  Remedy  by  injunction. 
5.  By  action  at  law. 

10.  Injuries  done  by  third  persons. 

11.  Waste  by  the  mortgagee. 


CHAPTER  XI. 

Estate  of  the  Mortgagee.  Nature  of  his  Title. 
Connection  between  the  Mortgage  and  the 
Personal  Security 235-290 

1.  A  mortgage  is  personal  estate.  The  mortgagee  has  a  mere  lien  or  pledge. 
Transfer  of  mortgage  without  the  debt. 

3.  Assignment  of  the  debt ;  whetlier  it  passes  the  mortgage  ;  doctrine  upon 
this  subject  in  the  several  States  ;  mortgage  to  secure  several  debts,  some  of 
■which  are  transferred  ;  assignment  of  different  debts  to  different  persons. 

20.  The  mortgagee  cannot  make  a  lease. 

21.  He  has  an  insurable  interest.     Rights  and  duties  of  parties  in  case  of  the 
insurance  of  mortgaged  property. 

37.  The  assignment  of  a  mortgage  is  the  assignment  of  an  estate,  not  a  mere 
security. 

38.  Case  of  Martin  v.  Mowlin,  and  criticisms  thereupon. 

41.  Joint  mortgagees;  their  interest  in  the  mortgage  and  the  personal  security. 

46.  A  mortgage  is  not  subject  to  legal  process. 

51.  Passes  as  personal  property,  upon  the  death  of  the  mortgagee. 

58.  By  what  words  devised. 

59.  Respective  titles  of  heir  and  executor ;  nature  of  the  interest  in  the  execu- 
tor's hands  ;  sale  for  payment  of  debts,  &c. 


CHAPTER  Xn. 

Estate  of  the  Mortgagee.  "What  Claims  and 
Demands  shall  be  secured  by  the  Mortgage. 
Tacking.     Future  Advances        .         .         .         291-327 

1.  Construction  of  the  condition  of  a  mortgage.     Ambiguity  of  description. 
Variance  between  the  mortgage  and  personal  security,  &c. 
22.  Tacking. 

33.  Whether  adopted  in  the  United  States. 
41.  Future  or  subsequent  advances. 


XU  CONTENTS. 


CHAPTER  XIII. 

Estate  of  the  Mortgagee.  Concurrent  or  Suc- 
cessive Mortgages  of  the  same  Property. 
Rights  of  Parties  collaterally  interested  in 
THE  Mortgaged  Estate         ....         328-373 

1.  Concurrent  mortgages. 

2.  Land  subject  to  mortgages  may  be  further  mortgaged.    General  rights  of 
subsequent  mortgagees  ;  wlien  they  become  entitled  to  priority,  &c. 

23.  Equitable  application  of  estates  subject  to  successive  mortgages. 

30.  Rights  of  parties  collaterally  liable  for  debts  secured  by  mortgage;  sure- 
ties ;  subsequent  mortgagees. 

41.  Mortgages  of  indemnity  to  sureties,  &c. 

68.  Transfer  of  dilferent  estates,  subject  to  one  mortgage.  Equitable  appor- 
tionment of  the  mortgage  debt. 

CHAPTER  XIV. 

From  what  Fund  a  Mortgage  shall  be  paid,  upon 

THE  Death  of  the  Mortgagor      .         .         .         374-388 

1.  General  nature  of  the  subject  —  general  rules  as  to  the  fund  for  payment 
of  a  mortgage  —  decided  cases  —  miscellaneous  points  and  decisions. 

CHAPTER  XV. 
Equity  of  Redemption 389-447 

1.  Definition  and  nature  of  an  equity  of  redemption. 

3.  Distinction  between  an  equity  of  redemption  and  a  trust. 
12.  Who  may  redeem  a  mortgage. 

21.  Against  whom  redemption  may  be  claimed. 
21.  Redemption  in  case  of  the  death  of  the  mortgagor. 

27.  Redemption  by  a  party  having  a  partial  interest  in  the  property ;  claim  for 
reimbursement. 

29.  An  equity  of  redemption  is  assets. 

30.  And  liable  to  legal  process. 

33.  But  it  is  not  thus  liable,  in  a  suit  upon  the  mortgage  debt;  cases  and  dis- 
tinctions upon  this  subject. 

48.  Wliether  the  indorsee  of  a  mortgage  note  may  levy  upon  the  equity  of  re- 
demption. 

51.  C)n-fP5i/ in  an  equity  of  redemption. 

52.  Whetlier  subject  to  dower ;  Enghsh  and  American  law  upon  this  subject. 
83.  On  what  terms  the  widow  may  redeem. 

CHAPTER  XVI. 

Equity  of  Redemption.  Terms  of  Redemption.  Ac- 
count OF  A  Mortgagee  in  Possession.  His  Lia- 
bility for  Rents,  and  Claim  for  Expenditures    448-479 

1.  The  mortgagee  is  liable  to  account,  as  a  steward  or  bailiff;  extent  of  his 
liability. 

12.  Alode  of  computing  interest ;  whether  the  mortgagee  is  chargeable  with 
interest ;  annual  rests. 


CONTENTS.  xiii 

18.  What  provisions  in  a  mortgage  will  bind  the  party  to  paj  interest. 
20.  Interest,  in  case  of  a  particular  tenant  and  reversioner. 

22.  For  what  repairs  and  other  expenditures  the  mortgagee  shall  be  allowed. 

34.  Sale  of  a  part  of  the  mortgaged  property  :  proceeds  to  be  accounted  for. 

35.  Accounting  for  rents,  &c.,  to  subsequent  mortgagees,  creditors,  assignees, 
&c. 

45.  Receivers. 

52.  Parties  in  case  of  a  decree  to  account  for  rents,  &c. 

CHAPTER  XVIL 

EXTINGULSHMEXT      OF     A     INIoRTGAGE,     BY     PaYMENT, 

Release,  etc 480-O33 

1.  In  general,  payment  of  the  debt  pays  the  mortgage  also. 

2.  Payment  alter  breach  of  condition;  waicer  as  to  time.    Changing  the  security 
for  a  debt  does  not  e.xtinguish  the  mortgage.     New  notes,  &c. 

8.  Effect  upon  the  mortgage  of  legal  and  judicial  proceedings,  either  between 
the  parties,  or  in  connection  with  strangers. 

10.  Of  making  the  mortgagor  the  executor,  &c.,  of  the  mortgagee. 

11.  Whether  a  deposit  shall  be  treated  as  payment. 

12.  Surrender  of  the  note  for  a  release  of  the  right  of  redemption  ;  whether 
payment. 

13.  Exceptions  and  qualifications  to  the  rule  above  stated.  Extinguishment 
of  a  mortgage  without  direct  payment;  by  renewal  of  notes,  appointment  of  ex- 
ecutors, legal  proceedings,  &c. 

20.  Application  or  appropriation  of  payments  ;  mutual  claims  and  offsets. 

23.  Presumptions  and  circumstantial  evidence  as  to  payment.  Parol  evi- 
dence. 

30.  The  effect  of  payment  upon  the  titles  of  the  respective  parties  and  their 
remedies. 

42.  Extinguishment  of  a  mortgage,  by  a  transfer  of  the  land  to  the  mortgagee. 
49.  Release  or  discharge  of  a  mortgage.     Discharge  upon  the  record. 
58.  When  a  release  may  be  avoided. 

CHAPTER  XVni. 
Assignment  of  a  Mortgage      ....         534—584 

1.  What  constitutes  an  assignment,  and  what  a  discharge,  of  a  mortgage. 

2.  11,  20.  Interest  and  intention  of  the  parties. 

3.  Party  having  a  right  to  an  assignment.     Intervening  liens,  &c. 
6.  Warranty  or  quitclaim  deed,  whether  an  assignment. 

12.  Cases  oi  dower. 

13.  Conveyance  to  a  trustee. 

14.  Payment  by  mortgagor,  after  his  equity  is  sold. 

15.  Cases  of  suretyship. 

18.  Conveyance  of  part  of  the  land. 

20.  Joint  mortgagors,  —  separation  of  joint  interest. 

21.  In  reference  to  parties  who  have  paried  v.ith  nothing. 

22.  Miscellaneous  cases. 

35.  Mortgage  of  indemnity ;  when  the  law  implies  an  assignment  of  such  mort- 
gage. 

37.  Conditional  assignment  of  a  mortgage,  whether  itself  a  mortgage. 
42.  Form  of  assignment. 

46.  What  passes  by  an  assignment;  whether  a  mortgagee,  after  assignment, 
can  release  or  bring  an  action. 

55.  Whether  he  shall  be  party  to  a  suit  for  redemption  or  foreclosure. 
57.  Consideration  paid  by  tlie  assignee,  whether  material. 
60.  For  what  amount  the  mortgagor  is  liable  to  the  assignee.     Whether  tlie 
latter  is  bound  by  previous  payments,  set  ofFs,  «ic. 

VOL.  I.  b 


Xiv  CONTENTS. 

73.  Guaranty  by  tlie  mortgag:ee,  wliether  implied  from  assignment. 

74.  Effect  of  tlie  mortgasjor's  joining  in  the  assignment. 

80.  Recording  of  an  assignment.  How  far  an  assignee's  title  may  be  affected 
by  fraud  or  notice. 

CHAPTER  XIX. 

Void  and  Voidable  Mortgages.     Usury      .      .      585-606 

1.  General  principle  as  to  avoiding  deeds. 

2.  Usury. 

4.  What  constitutes  usury  in  a  mortgage. 

12.  What  does  not  constitute  usury.  ' 

22.  Statement  of  questions  arising  in  relation  to  usurious  mortgages. 

25.  When  the  sum  legally  due  may  be  recovered. 

26.  Distinction  between  a  bill  for  foreclosure,  and  a  bill  to  redeem,  in  relation 
to  usury. 

33.  What  parties  may  be  affected  by  usury  in  a  mortgage. 
36.  Wliat  parties  may  avail  themselves'ot  such  usury. 

40.  What  will  preclude  a  mortgagor  from  setting  up  usury  ;  effect  of  a  prior 
judgment,  &c. 

41.  Form  of  pleading  usury. 
44.  Evidence  —  parol  evidence. 

CHAPTER  XX. 

Void  and  Voidable  Mortgages.  Illegality,  Want, 

OR  Failure  of  Consideration       .         .         .         607-617 

1.  Illegal  consideration. 

5.  Want  of  consideration  ;  as  between  the  parties,  and  in  relation  to  credit- 
ors. &c. 

12.  Want  or  failure  of  consideration,  consisting  in  a  defect  of  title. 

CHAPTER  XXI. 

Void  and  Voidable  Mortgages.  Fraud  between 
THE  Parties  and  in  Relation  to  Creditors.  Fraud 
OxN  THE  Part  of  a  Mortgagee  ;  Effect  upon  sub- 
sequent Incumbrancers  ....         618-646 

1.  Fraud  between  the  parties. 

6.  Fraud  as  to  creditors,  &c. 

16.  Fraudidi.nt  concealment  or  misrepresentation  of  title  by  a  mortgagee  ; 
effect  upon  subsequent  incumbrancers ;  attestation  by  him  of  a  subsequent  deed  ; 
delivery  of  title-deeds  to  the  mortgagor,  &c. ;  (slop/iel. 

81.  Limitations  and  restrictions  of  the  rule  above  stated. 

40.  Mortgage  from  client  to  attorney. 

41.  Mortgage  of  an  infant. 

43.  Mortgage  in  reference  to  bankrupt,  &c.,  laws. 

CHAPTER  XXII. 

Equitable  Mortgage.    Deposit  of  Title-Deeds     647-659 

1.  Equitable  liens. 

2.  Dei)()<it  of  deeds  ;  constitutes  a  mortgage  ;  establishment  of  the  doctrine  ; 
case  of  /i'msm/  v.  /I'us.svV. 

3.  (Qualifications  and  criticisms  of  the  rule  ;  remarks  of  judges  and  elemen- 
tary writers. 


CONTENTS.  XV 

4.  Decisions,  establishing  tlie  doctrine. 

5.  General  rules  and  principles. 
12.  American  doctrine. 

17.  Effect  upon  the  title  of  a  mortgagee,  of  leaving  the  deeds  in  the  hands  of 
the  mortgagor,  and  a  deposit  by  him. 

CHAPTER  XXIII. 

Equitable   Mortgages.     Lien  of  a  Vendor  for 

THE   Purchase-Money  ....         660-714 

1.  General  nature  of  the  lien. 

3.  Remarks  upon  the  policy  of  the  rule  ;  whether  it  is  consistent  with  the 
general  doctrines  relating  to  real  property. 

7.  The  doctrine  is  well  settled  by  the  weight  of  authorities. 

8.  Strictures  and  criticisms  of  tlie  American  courts.   The  rule  is  not  adopted 
in  some  of  the  States. 

9.  But  it  is  adopted  in  most  of  them  ;  abstract  of  decisions  upon  the  subject. 
10.  General  nature  of  the  lien  ;  an  <quitahle  riglit. 

20.  Against  what  parties  the  lien  may  be  enforced.  Purchasers  ;  by  what 
notice  thev  shall  be  affected. 

27.  Heirs. 

28.  Widow  —  husband  and  wife. 
30.  Creditors. 

33.  By  whom  the  lien  may  be  enforced. 

37.  Waiver  and  discharge  of  the  lien  of  a  vendor  for  the  purcliase-money,  by 
taking  security  therefor,  or  by  other  a(;ts  and  agreements. 
53.  Mode  of  enforcing  the  vendor's  lien  ;  bill,  decree,  &c. 

CHAPTER  XXIV. 
Registration  of  Mortgages     ....         715-729 

General  requisition  of  registration  in  the  United  States  ;  not  necessary  be- 
tween the  parties,  &c.  ;  operation  of  an  unrecorded  mortgage,  as  against  other 
incumbrances  ;  registration,  how  far  notice  ;  not  necessary,  as  against  parties 
having  notice;  what  shall  constitute  such  notice;  form  of  registration,  &c. 


INDEX   TO   CASES   CITED. 


Abbe  V.  Goorhj'in 
V.  Newton 
Abbott  V.  Godfrey 
V.  Upham 
v.  Ui)tou 
Aborn  v.  Burnett 
Afkia  V.  Ackla 
Adair  c.  Aiiair 
Adams  v.  Barnes 
V.  Brown 
V.  Hill 


PAGE 

482 

610 

660 

177 

496 

62 

509,  512,  631 

569 

604 

451,  468 

3 


V.  McKenzie  85 

Addison  v.  Crow  329 

^tna,  &e.  v.  Tyler  712 

Aikin  v.  G^ile  359 

V.  Morris  620 

V.  Skilburn  271 

Albany,  Sec.  v.  Bay  138,  160 

Albany's  case  36 

Alderson  v.  Ames  3,  7 

V.  White  4 

Aldridge  v.  Dunn  691,  700 

V.  Weems  562 

V.  Westbrook  543 

Aldworth  V.  Robinson  298 

Alexander  r.  Heriot  663 

Alford  V.  Helms  684,  709 

Allen  V.  Bicknell  16  7 

V.  Clark  360,  364 

V.  Hudson,  &c.  260 

V.  Montgomery,  &c.  719 

V.  Parke'r  167 

Allenby  v.  Dalton  109 

Ammerman  v.  Jennings  687 

Amory  v.  Reilly  663,  687,  710 

Ancaster  V.  Mayer  109,380 

Anderson  v.  Baughman  726 

V.  Baumgartner  251,  629 

V.  Davies  293 

V.  Neft'  480 

Andrew  Newport's  case  722 

Andrews  v.  Burns  716 


126, 


PAGE 

363 

5 

448 

701 

491 

276 

483 

468 

66,  622 

21 

286,  390 

716 

716 


Andrews  v.  Woleott 

Angier  v.  Masterson 

Anthony  v.  Rogers 
I'.  Smith 

Applegate  v.  Mason 

Appleton  V.  Boyd 

Armitage  v.  Wickliffe 

Arnold  v.  Foot 

V.  Mattison 

Arnot  i\  Post 

Asay  V.  Hoover 

Ash  V.  Ash 

Ashe  V.  Livingston 

Ashhurst  v.  The  Montour,  &c.  1 

Ashton  c.  Dalton  654,  655 

Aston  V.  Aston  459 

Astor  V.  Hovt  221,  483 

V.  Mlfler  483 

V.  Turner  4  75 

Atkins  V.  Sawyer  408 

Atkinson  i>.  Maling  317 

Atterbury  v.  Willis  630,  638,  645,  657 

Attorney-General  v.  Bowyer         286 
V.  Phillips  285 

V.  Scott  422 

V,  Winstanlev  153 


Atwood  V.  Vincent 
Augur  V.  Winslow 
Austen  v.  Halsey 
Austin  !'.  Austin 
I'.  Bradley 
V.  Downer 
Averill  v.  (iuthrie 
V.  Loucks 
V.  Taylor 
Aymar  v.  Bill 
Ayres  v.  Case 

V.  Husted 


Babbitt  v.  Bowen 
Babcock  v.  Kennedy 


667,  672 
481 
673 
121 
85 
351 
630 
17 

397,403 
239 
503 

341,  342 


281 
199 


XVlll 


INDEX   TO    CASES    CITED. 


PAGE 

PAGE 

Babcock  v.  Morse 

344 

482 

Bates  V.  Ruddick 

359 

Bacon  v.  Bowdoin 

194 

396 

Battles  V.  York,  &c. 

259 

I'.  Brown 

64,  99 

109 

Batty  V.  Snook 

73,  78,  86 

Badham  v.  Cox 

693 

Baxter  v.  Mclntire 

291, 

292, 

482, 

Bagot  V.  Oughton 

345 

484, 

586 

Bailey  v.  Gould 

23  7 

V.  Willey 

63 

V.  Lincoln,  &c. 

607 

Bayler  v.  Commonwealth 

11 

316 

V.  Murphy 

589 

Bayley  v.  Bailey 

38 

100 

V.  Richardson 

545 

V.  Greenleaf 

619, 

628, 

640, 

V.  Warners 

344 

678 

691 

,  692 

Baine  v.  Williams 

341 

Baylies  ??.  Bussey 

527 

Baker  v.  Pierson 

298 

Beall  V.  Barclay 

359, 

633 

,  643 

V.  Thrasher 

97 

Heals  V.  Clark 

9 

V.  Winipee 

513 

Beamish  v.  Overseers, 

&c. 

165 

Baldwin  v.  Jenkins 

24,  39 

413 

Bean  v.  Mayo 

171 

V.  Norton 

494 

602 

Beare  v.  Prior 

449 

Ballard  v.  Carter 

284 

Beatie  v.  Butler      141 

142 

143 

286 

Ballinger  v.  Edwards 

593, 

694 

Beatty  v.  Clement 

584 

Bank  v.  Herbert 

716 

Beck  V.  M'Gillis 

286 

V.  Mitchell 

342 

Beckett  v.  Cordley 

632 

V.  Willard 

320 

V.  Snow 

317 

Bank,  &c.  v.  Carpenter 

609, 

716 

Beekley  v.  Munson 

24 

V.  Christie 

326 

Beekman  v.  Frost 

316 

V.  Finch 

308,318 

483 

Beeley  v.  Wallace 

192 

V.  Flagg 

721 

Beers  v.  Hawley 

717 

V.  Mott 

232 

Bi'in  V.  Heath 

11 

143 

V.  Peter 

339 

Biirne  v.  Campbell 

686 

V.  Rose 

451 

484 

Belding  v.  Manly 

247 

V.  Sprigg 

49 

Bell  V.  Fleming 

316 

V.  Tar le  ton 

253 

495 

V.  Hammond 

390 

i\  Whyte 

66,  295 

394 

V.  Mayor,  &c. 

451 

461 

Banks  v.  Sutton 

421 

V.  Morse 

244 

V.  Walker 

614 

V.  Thomas 

719 

V.  Waller 

617 

V.  Woodward 

511 

541 

545 

Banta  v.  Garmo 

544 

Benbow  v.  Townsend 

52 

Barber  v.  Gary 

337 

Bend  v.  Susquehannah 

,&c. 

66 

Bard  v.  Fort 

{;04 

Benham  y.  Rome  131, 

141, 

142, 

449, 

Barden's  case 

180 

450 

Barelli  v.  Schymanski 

194, 

390 

Bennett  v.  Butterworth 

450 

Barham  v.  Earl,  ike. 

560 

V.  Holt 

101 

V.  Thanet 

387 

V.  Solomon 

568 

Baring  v.  Moore 

364 

V.  Taylor 

236 

Barkliamstead  v.  Farmington 

164 

V.  L^nion,  &c. 

24,  40, 

129 

Barnard  v.  Eaton         4 

16,  157 

419 

Benuock  i'.  Whipple 

41 

V.  Pope 

626 

Bentham  v.  Haincourt 

459 

Barnes  v.  Camack 

530 

Bentley  v.  Phelps 

65 

V.  Lee 

562 

Benzein  v.  Lenoir 

392 

V.  Morris 

344 

Bergen  v.  Bennett 

143, 

148 

V.  Racster 

343 

Berger  v.  Hiester 

504 

Barney  r.  Adams 

214 

Bernoy  v.  Sewell 

477 

Barnitz  v.  Smith 

693 

Berry  v.  Mutual,  &c. 

657 

Barr  v.  Kinard 

73,  78, 

721 

Berrysfbrd  if.  Millward 

630 

Barra(iue  v.  Maunel 

565 

Besley  i\  Lawrence 

357 

Barroilhet  v.  Battelle 

28, 

235 

Best  V.  Carter 

24 

Barllioloniew  v.  M'Kinstry 

620 

V.  Schermier 

475 

Basso  tt  u.  Bassett 

44 

Bethlehem  v.  Annis  97 

106 

119, 

169 

INDEX   TO    CASES    CITED. 


XIX 


Betton  V.  Williams 

PAGE 

704 

Bottorf  y.  Conner 

PAGE 

677 

Bevant  t>.  Pope 

23 

Bourne  v.  Littlefield 

458 

Bibb  V.  Williams 

729 

Bowditch,  &c.  V.  Winslow 

259 

260 

Bickfbrd  v.  Daniels 

61 

Bnwen  v.  Edwards 

70 

Bijzelow  V.  Topliff 

63 

Bower  v.  Crane 

192 

Billinghurpt  v.  Walker 

364 

Bowes  V.  Seager 

580 

Bircii  0.  Wright 

178 

183 

Bowker  v.  Bull 

344 

Bird  V.  Gardner 

431 

Bowman  v.  Manter 

497 

Birnel  v.  Eskie 

484 

Boyd  V.  Stone 

55 

Bishop  V.  Warner 

610 

Boylston  i'.  Carver 

287 

Bisland  v.  Hewitt 

688, 

689 

Bozon  V.  Williams 

655 

Black  V.  Morse 

368 

Brace  r.  Duchess,  &c. 

298 

Blackburn  v.  Gregson 

673 

Bradford  v.  Harper 

687 

701 

V.  Pennington 

714 

V.  Marvin 

695 

V.  Warwick 

456 

V.  Potts 

617 

Black  well  v.  Overby 

61,  62 

Bradley  v.  Chester,  &c. 

130 

Blair  V.  Bass 

62, 

251 

V.  Snyder 

466 

V.  Ward 

369 

Bragg  V.  New  England,  &c. 

161, 

260, 

Blair's  case 

288 

268 

Blake  v.  Williams           245, 

332, 

620 

Brainerd  v.  Brainerd 

64 

Blakeniore  v.  Byrnside 

66, 

107 

V.  Cooper 

396 

Blanchard  v.  Colbura 

278 

Braman  v.  Wilkinson 

721 

V.  Kenton 

21 

Branch,  &c.  v.  Fry 

203 

Blaney  v.  Bearce 

177 

Bratton,  &c. 

415 

729 

Blodgett  V.  Wadhams 

481 

Brawley  v.  Catron 

679 

Bloodgood  V.  Zeily 

74 

Breckenridge  v.  Auld 

35 

Bloom  r.  Noggle 

2, 

647 

V.  Brooks 

450 

Bloomer  v.  Henderson 

574 

V.  Ormsby 

518 

V.  Van  Rensselaer 

129, 

390 

Brewer  v.  Staples 

349 

Blount  i;   Hipkins 

387 

Brick  V.  Getsinger 

227 

Blydenburgh  v.  Cotheal 

590 

Bridenbecker  v.  Lowell 

247 

Blyer  v.  Monholland 

363 

Briggs  V.  Davis 

390 

Boarman  v.  Catlett 

395 

V.  French 

619 

Bobbitt  V.  Flowers 

487 

V.  Hill 

703 

Boden's  estate 

283 

V.  Sholes              593, 

603, 

605 

Bodwell  V.  Webster             37,  41 

,  55 

Brinkerhoff  V.  Lansing 

486, 

633 

Boisgerard  o.  Wall 

18 

V.  Vansciner 

671 

674 

Bolles  V.  Chauncey        481, 

484, 

719 

Brisbane  v.  Stoughton 

129 

V.  AVade 

556 

Briscoe  6-.  Bronaugh 

678, 

684 

Bollinger  v.  Chouteau 

461 

V.  King 

122 

Bolton  V,  Ballard 

421, 

432 

Bristoe  v.  Knipe 

122 

V.  Brewster 

516 

Bristol  V.  Hungerford 

298 

Bond  V.  Kent 

672 

Britton  v.  Updike 

360 

Bonham  v.  Galloway 

497 

Brizick  o.  Manners 

654 

V.  Newcomb 

75,  76 

Brock  V.  Lewis 

448 

607 

Bonithon  v.  Hockmore 

450 

Broderick  v.  Smith             86,  87 

168 

Boody  V.  Davis 

44,  61 

Brolasky  r.  Miller 

599 

Booker  v.  Gregory 

455 

BroUey  v.  Lapham 

514 

Boon  V.  Barnes 

682 

Brooke  v.  Warwick 

388 

Boos  V.  Ewing 

700 

Brookover  v.  Hurst 

621 

Booth  I'.  Barnum 

317 

Brooks  r.  Avery 

590 

601 

1'.  Sweezey 

361 

V.  Harwood 

443 

510 

Boqut  0.  Coburn 

68 

402 

Broome  v.  Beers 

627 

Borst  V.  Boyd 

390 

Brown  v.  Barkham 

87 

Boston,  &c.'i'.  King         234 

,456 

,504 

V.  Blydenburgh 

563 

Bottomly  v.  Fairfax 

422 

V.  Cole 

482 

XX 


INDEX   TO    CASES    CITED. 


PAGE 

Brown  v.  Cram  157,  158,  182 

V.  Dt'wey  59 

V.  East  713 

V.  (ilines  11 

V.  Kirkman  716,  728 

r.  Lapham  439,  543,  544 

r.  l.each  167,  172 

V.  iMarkham  87 

V.  Nickle  39 

r.  People's,  &c.  258 

V.  Sewell  481 

V   Snell  163 

V.  Staples  126 

V.  Stewart  167,  227 

V.  Story  205 

V.  Worcester,  &c.  403 

V.  Wrijrht  65,  308 

Brumfield  v.  Palmer  687 

Brundige  r.  Poor  11 

Brush  V.  Kinsley  705 

Bryan  v.  Butts  151,  153,  236 

V.  Cowart  36,  37,  66 

Bryant  v.  Crosby  66 

V.  Damon  242 

Buchanan  v.  Munroe  390 

Buck  V.  Slierman  413 

Budd  V.  Bush  671 

Budeley  v  Massey  27 

Buell  V.  Tate  123 

Buffum  V.  Bowditch,  &c.  259 

Bulkley  v.  Chapman  248 

BuUard  v.  Bowers  444 

V.  Leach  541 

Bumn;ardner  y.  Allen  117 

Bumpas  v.  Dotson  296 

V.  Plattner  613 

Burchard  v.  Phillips  329 

Burdett  v.  Clay  252,  483 

Burgess  v.  Sturgis  709 

V.  Wheat  389,  672,  712 

Burlingame  v.  Kobbins  683 

Burnet  v.  Deniston  141,  143 

V.  Dennison  311 

V.  Pratt  276,  277 

Burns  v.  Hobbs  620 

V.  Taylor  661,  674,  687 

Burton  V.  Baxter  251 

V.  Pressly  482 

V.  Slattery  87 

Bush  V.  Cooper  585 

V.  Livingston  588 

Bushell  V.  Bushell  718 

Bussey  V.  Page  231 

Buswell  V.  Davis  633 

Butler  V.  Butler  384 

V.  Elliott  341 


Butler  V.  Paige 
V.  Taylor 
Butt  V.  Boudurant 
Byars  v.  Bancroft 
Bvass  V.  Bancroft 
Byers  v.  Fowler 


PAGE 

180 
341 
596 
629 
331, 482 
291,  360,495 


Cadwallader  v.  Mason  155 

Cahoon  v.  Robinson  688 

Cake's,  &c.                           3,  331,  664 

Calkins  v.  Calkins  236 

V.  Munsell  373 

Galium  V.  Branch,  &c.  343 

Cameron  v.  Irwin     83,  143,  182,  481 

V.  Mason  669 

Campbell  v.  Baldwin      685,  697,  700 

V.  Knights  535 

V.  Low  12 

V.  Macomb  228 

V.  Worthington  63 

Capen  r.  Richardson  36 

Carew  v.  Johnston  477,  573 

Carey  v.  Rawson  40 

Carpenter  v.  Cumniings  639 

V.  Providence,  &c.        256, 

263,  269 

Carr  v.  Caldwell  3,  447 

V.  Hobbs  671,  688 

Carter  v.  Bennett  254 

I               V.  Carter  60,  66 

I               V.  Dennison  596 

17.  New  York,  &c.  257,  258 

I               V.  Rockett  258 

:  Carvis  v.  M'Clary  204 

Cary  v.  Prentiss  489 

Casborne  v.  Inglish  23 

j                   V.  Scarfe  154,  159 

Casey  v.  Buttolph  648 

j  Cass  V.  Martin  439 

Castleman  v.  Belt  198,  208 

I  Cathcart's,  &c.  336 

Catherine  v.  Meyrick  280 

Cator  V.  Charlton  305 

Cavis  V.  M'Clary  200 

i  Center  v.  P.  &  M.  Bank  254,  721 

j  Chace  V.  Palmer  155 

j  Chadbourne  i-.  Racklift  553 

'  Chamberlain  v.  Barnes  573 

V.  Thompson  158,  312 

Chambers  v.  Goldwin  86,  5  73 

V.  Hise  85 

V.  Mauldin  301 

Champney  v.  Coope       480,  635,  538 


INDEX   TO    CASES   CITED. 


XXI 


Cbamplin  v.  Williams 

PAGE 

359 

Chance  v.  M'VVhorter 

682 

Chancey  v.  Arnold 

656 

Chapman  v.  Armi&tead 

192 

V.  Beecham 

188 

V.  Chapman 
V.  Hughes 

648 
66 

V.  Mull 

391 

V.  Smith 

453 

V.  Stockwell 

685 

V.  Tanner 

472 

672 

V.  Turner      1,  29,  31, 

100, 

102 

Charles  v.  Clagett 

23, 

390 

V.  Dunbar 

333 

472 

Charter  v.  Stevens 

144 

Chase  v.  M'Donald 

313 

Cheek  v.  VValdrum 

128 

Cheever  v.  Fair 

360 

361 

Chellis  V.  Stearns 

168, 

170 

Cherry  v.  Bowen 
V.  Monro 

67 
340 

Cheslyn  v.  Dalby 
Chester  v.  Greer 

641 

645 
642 

V.  Wheelwright 

297 

507 

Chew  V.  Barnett 

8, 

661 

Childs  V.  Childs 

131 

150 

Chilton  V.  Chapman 

355 

Chinnery  v.  B  aekburne 

223 

Christophers  v.  Sparke 
Choteau  v.  Thompson 

482 

151 

726 

Cholmondeley  v.  Clinton 

154, 

178, 

185, 

448 

Chowning  v.  Cox 

25 

390 

Church  V.  Savage 

37(! 

Churchill  V.  Cole 

602 

Cicotte  IK  Gagnier 

574 

Cilley  V.  Huse 

4  74 

Clabaugh  v.  Byerly       632, 

635, 

6  to, 

642 

649, 

718 

Clagett  V.  Salmon 

527 

Claiborne  v.  Crockett 

703 

Clarendon  v.  Barham 

388 

Clark  V.  Beach 

248 

249 

V.  Bell 

708 

V.  Curtis 

155 

475 

V.  Flint 

6  73 

V.  Henry 

93 

V.  Hobbs 

61 

V.  Jenkins 

581 

V.  Ridgley 

475 

V.  Bobbins 

450 

V.  Smith       240,  462, 

464, 

468, 
469 

Clarke  v.  Sibley 

391, 

395 

V.  Stanley 

338 

Clason  V.  Shepherd 
Clay  r.  Willis 
V.  Wren 
Clearwater  v.  Rose 
Clench  V.  Witherly 


PAGE 

725 

131 

171 

251 

131 

Cleveland  v.  Martin  482,  700,  702 

Clift  V.  White  522 

Clinton  v.  Hooper  13 

Clough  V.  Elliott  437 

Glower  v.  Rawlings  697,  698,  699 

Clowes  V.  Dickenson  360 

Coates  V.  Cheever  544 

'               V.  Wood  worth  66 

Coe  V.  Columbia,  &c.  7 

j  Cofiing  V.  Taylor  129,  160,  166 

Coker  v.  Pearsall  200 

Colcord  V.  Seamonds  655,  707 

j  Cole  V.  Boland  60,  644 

V.  Lovenskiold  609 

I  Coleman  v.  Bank,  &c.  729 

Coles  V.  Coles  427 

I            V.  Peltry  24,  100 

I  Collamer  v.  Langdon  495,  539,  543 

I  Collett  V.  Munden  305 

Collier  v.  Harkness  683 

Collins  V.  Carlile  287 

V.  Hopkins  143 

Colman  v.  Packard  169 

Colquhitt  I'.  Thomas  628 

Colquitt  V.  Thomas  6  78 

Colton  V.  Smith  18 

Columbia  ii.  Lawrence  257 

Colyer  v.  Finch  657 

Commercial,  &c.  v.  Cunningham  317 

Couistock  V.  Stewart  25 

Conant  v.  Warren  131 

Conard  v.  Atlantic,  &c.  317 

Congdon  v.  Santbrd  182 

Cotiklin  V.  Bowman  617 

Conover  v.  Mutual,  &c.  160,  266 

V.  Warren  671 

Contributors  r.  Gibson  482 

Converse  c.  Cook  271,  559 

Conway  v.  Alexander  100,  101,  112 

V.  Deerfield  164,  165 

V.  Shrimpton  5 

Cook  V.  Colyer  605,  618 

V.  Gudger  61 

V.  Harris  222 

V.  Hinsdale  566 

Coolev  V.  Hobart  609 

Cooley's,  &c.  537 

Coombs  V.  Jordan  313 

V.  Warren  165 

Cooper  V.  Davis  230 

V.  Ulmann  252 


xxn 


INDEX   TO    CASES   CITED. 


PAGE 

Cooper  V.  Whitney  26 

Cope  V.  llomeyn  463 

Copeland  v.  Copeland  719 

Copis  V.  Miildleton  343,  348 

Coppin  I'.  Coppin  672 

Copprinn;  (i.  Cooke  472 

CordtT  v.  Morgan  137 

Corliss  i>.  M'Lagin  463 

Cornell  v.  Presoott  434 

i\  Pierson  35 

Corning  v.  Murray  718 

Coster  V.  Bank,  &c.  705,  715 

V.  Monroe,  &c.  125 

Cotten  V.  Blocker  279,  647 

Cottes  0.  Jeffers  484 

Cotterell  v.  Long  24 

V.  Purchase  34,  35,  81 

Cottington  v.  Fletcher  54 

Cottman  v.  Martin  6  71 

Couch  I'.  Stevens  503 

Couger  V.  Lancaster  117 

Courtney  v.  Scott  74 

V.  Taylor  1 1 0 

Coutant  ?;.  Servoss  148 

Cowan  V.  Green  729 

Cowles  V.  Raguet  607 

Craft  V.  Bullard  66 

V.  Webster  581 

Crafts  V.  Aspinwall  688,  710 

V.  Crafts      293,402,461,466, 

545 

Craig  V.  Tappin  316 

Crane  v.  Bonnell  101 

V.  Caldwell  696 

V.  Dewing  322 

V.  March  4 1  7 

V.  Palmer  689 

Crawford  v.  Boyer  330 

Crews  V.  Pendleton  182 

Crinion  v.  Nelson  565 

Crocker  v.  Robertson  125,  129 

V.  Tiionipson  51 ' 

Cronin  v.  Hazletine  332 

Crooker  v.  Temell  284,  540 

Crosby  v.  Brownson  248 

Cross  V.  Il.'pner  23,  24 

V.  Robinson  515 

Crow  V.  Vance  236,  252 

Galium  V.  Branch,  &c.  486 

V.  Emanuel  624 

i:  Krwin  333 

Culp  V.  Fisher  1 24 

Gumming  v.  Cumming  360 

V.  Williamson  275 

Cunningham  v.  Davis  596 

Curling  V.  Shuttleworth  131 


PAGE 

Curtis  V.  Lyman 

725 

V.  Root 

4 

Curtiss  V.  Tripp 

627 

Gushing  v.  Ayer 

360 

363 

r.  Thompson 

257 

Cutler  V.  Haven 

243 

V.  Lincoln 

10,  515, 

543 

V.  Pope 

663 

Cutts  V.  York 

559 

565 

D. 


Dale  V.  Shirley  333 

Dan  forth  v.  Smith  442 

Darling  v.  Chapman  21,  168 

Davenport  v.  Bartlett  41,  155 

Davidson  v.  Beard  729 

Davis  V.  Anderson  155 

V.  Battine  490 

V.  Clay  660 

V.  Cox  700 

V.  Fargo  506 

V.  Jewett  86 

V.  Lagarter  449 

V.  Maynard  483,  489 

V.  Mills  350 

i;.  Rider  361 

V.  Stonestreet  100 

V.  Thomas  104 

Davison  v.  De  Freest  613 

Day  V.  Clark  720 

Deakyne  v.  Love  3 

Dean  v.  Dean  672 

V.  De  Legardi  719 

Dearborn  v.  Dearborn  174 

Dearing  v.  Lightfoot  720 

V.  Watkins  720 

Deaver  v.  Parker  410 

De  Bolle  v.  Pennsylvania,  &c.       255 

De  Butts  V.  Bacon  589 

De  Cottes  v.  Jeffers  351 

D<;rorest  v.  Hough  492 

Dt'il)ler  v.  Barwick  705 

Dclahay  r.  M'Connell  66 

Delassus  v.  Boston  688,  689,  710 

D«niarest  v.  Winkoop  11 

Deming  v:  Comings         508,  509,  584 

Den  i;.  Dimon  162,  240,  566 

V.  Spinning  512 

Denton  v.  Nanny  427,  429 

Dcstreham  v.  Scudder  131 

De  Vendal  v.  Malone    495,  612,  724 

Dewey  v.  Bulkley  621 

f.  Latson  159 

V.  V&n  Dcusen  283 


INDEX    TO    CASES    CITED. 


XXlll 


PAGE 

Dexter  v.  Arnold  280,  449,  461 

V.  Phillips  192 

Dey  V.  Dunham  34,  47 

Dickv.  Balch  719 

V.  Maury  253 

Dillon  V.  Byrne  3,  690 

Dingman  v.  Randall  499 

Dinn  i\  Grant  714 

Divoll  V.  Atwood  593,  605 

DIxfield  V.  Newton  539 

Dixie  V.  Davis  188 

Dixon  V.  Cuyler  608 

V.  Dixon  705 

Dobson  V.  Land  469 

V.  Racey  129,  142 

Dockray  v.  Noble  246 

Dodtre  r.  Potter  725 

Doe  V.  Barton  180,  209 

V.  Bank,  &c.  728 

r.  Bucknell  197,  205 

V.  Cadwallader  206 

V.  Clifton  209 

V.  Cox  188 
V.  Day  175,  176,  190 
V.  Giles                    180,  185,  190 

V.  Goldsmith  214 

V.  Goldwin  1 75 

r.  Goodier  206,  207 

V.  Hales  204 

V.  Kensington  204 

V.  Lawrence  216 

I'.  Lewis  204 

V.  Lightfoot  176 

V.  Maisey  184 

V.  McLoskey  162 

V.  OUey  189,  206 

V.  Simpson  200 

V.  Stone  209 

V.  Tom  189 

V.  Warburton  201 

V.  Williams  *'180 

Doniphan  v.  Panton  608 

Donnels  v.  Edwards  277 

Dorkrey  v.  Noble  539 

Dorr  V.  Peters  117 

Doton  V.  Russell  515 

Doub  V.  Barnes  599 
Dougherty  v.  McColgan  80,  100,  236, 
461,  463, 464 

V.  Randall  238 

Douglas  V.  Shumway  663 

Douglass  I'.  Pcele  717 

■    Downer  v.  Button  245 

V.  Fox  340 
i>.  Wilson           480,538,541 

Dovle  V.  Stevens  720 


Doyle  V.  White 
Drew  V.  Rust 
Driver  v.  Clark 

?;.  Hudspeth 
Drury  v.  Morse 

V.  Dubois,  &c. 
Dryden  v.  Frost 
Dudley  v.  Cadwell 
Duncan  V.  Drury 
Dunham  v.  Dey 
Dunshee  v.  Parmelee 
Durham  v.  Aldcn 
Dust  V.  Conrod 
Dutton  V.  Ives  ; 

V.  N.  E.,  &c. 
Duvall  V.  Bibb 
Dwinel  v.  Perley 

V.  Pomeroy 
Dyer  v.  Lincoln 
V.  Morton 
Dyson  v.  Morris 


E. 


PACK 

296 

537,  541 

708 

708 

593 

250 

723 

127,  237,  248 

535,  549 

719 

455,  484 

626,  627 

29 

363,545,  581 

160 

683,697 

246 

50 

605 

685 

271 


Eagle  V.  Pell 

470 

Earl  of  Belvedere  v.  Rochford 

382 

Earp,  &c. 

459 

Eastman  v.  Batehelder 

174 

V.  Foster 

353 

Eaton  V.  Green 

101, 

105 

V.  George 

61, 

582 

V.  Jaques 

220, 

221 

V.  Nason 

12 

V.  Simonds    434,  441,450 

535 

V.  Whiting 

139, 

279 

Eckford  V.  De  Kay 

59 

Eddleston  v.  Collins 

11 

Edmonds  v.  Crenshaw 

317 

Edmunds  v.  Povey 

300 

Edrington  v.  Harper 

100 

Edwards  v.  Bodine 

615 

V.  Ferguson 

116 

V.  Lis.  Co. 

21 

V.  Jones 

215 

V.  Varick 

237 

Elder  v.  Rouse 

114 

Elfe  V.  Cole 

1 

151 

Ellicott  V.  United  States, 

&c. 

475 

Elliot  V.  Edwards 

673 

Elliott  y.  Maxwell 

61 

V.  Fatten 

396 

,401 

Ellis  V.  Guavas 

286 

r.  Higgins 

56 

V.  Martin 

351 

V.  Messervie 

645 

XXIV 


INDEX   TO    CASES   CITED. 


PAGE 

Ellison  V.  Daniels 

162,  244 

Ellsworth  V.  Mitchell 

334,  604 

Elwys  V.  Thompson 

403 

Ely  V.  Sohofiekl 

281, 

529,  581 

Emerson  v.  Thompson 

192 

Emery  v.  Owings 

294 

Ends  worth  v.  Griffith 

80 

Ensile  V.  Haines 

363 

English  u.  Lane 

40.  66 

i\  Russell 

671 

Enston  V.  Friday 

485 

Erskine  v.  Townsend 

5,  37,  38 

Erving  V.  Beauchamp 

708 

Eskridge  v.  McClure 

683, 

686,  688, 

699 

703,  709 

Estes  V.  Cook 

192 

Evans  v.  Elliot 

196 

204,  207 

V.  Kimball 

541 

V.  Meriiken 

4, 

180,  274 

V.  Meylert 

11 

V.  Thomas 

233 

Evertson  v.  Booth 

341, 567 

V.  Ogden 

368,  52  7 

V.  Sutton 

150 

Ewer  V.  Hobbs 

155 

Ewing  V.  Beauchamp 

682 

Exton  V.  Greaves 

88, 110 

Eyler  v.  Crabbs 

677 

F. 

Fannell  v.  Murphy  397 

Fanning  v.  Kerr  129 

Fanner  v.  Simpson         666,  675,  702 

Farmers,  &c.  v.  Curtis  609 

V.  Douglass  582 

V.  Edwards  7  7,  516 

V.  Mahby  727 

V.  Mutual,  &c.  487 

Farcjuhar  v.  Morris  458 

Farruut  i'.  Lovel  233 

V.  Thompson  228 

Farrar  v.  Winterton  661 

Farrow  v.  Kc.es  638 

Far  well  v.  Murphy  332 

Faure  v.  VVinans  469 

Fawell  V.  Heelis              672,  673,  692 

Fay  V.  Brewer  157 

Felch  V.  Taylor  157,  238 

Felton  V.  Brooks  270,  564 

Fenner  v.  Tucker  141 

Fen  no  v.  Sayre  713 

Fenwick  v.  Ratclifle  596 

Ferguson  t;.  Ferguson  1 74 

I'.  Kimball  119 


PAGE 

Ferris  v.  Ferris  87 

Fetter  n.  Cirode  296 

Field  V.  Swan  203,  213 

Field's,  &c.  284 

Fifield  V.  Sperry  281 

Finch  V.  Brown  456 

V.  VVinchelsea  713 

Fink  V.  Martin  612 

Fire,  &c.  V.  Morrison  255 

Firemen's,  &c.  v.  Bay  11 

Fish  V.  Rowland  672,  680 
Fisher  v.  Johnson           688,  689,  695, 

702 

V.  Otis  574 

Fiske  V.  Fiske  120 

Fitch  y.  Cotheal  "  11,545 
Fitchburg,  &c.  r.  Melven       194,  210 

Fitzgerald  v.  Beebe  298 

Fitzpatrick  v.  Fitzpatrick  142 

F'ltzsimmons,  &c.  406 

Flagg  V.  Flagg  170 

y.  Mann  61,93,112 

Flanders  v.  Barstow  483,  487 

V.  Lamphear  172 

Fleet  V.  Youngs  236 

Fleming  v.  Burgin  720,  729 

I'.  Parrv  512 
Flint  V.  Sheldon                55,  115,  605 

Floyd  r.  Harrison  42 

Floyer  v.  Lavington  103,  109 

Fluck  V.  Replogle  549 

Foley  V.  Howard  716 

Follett  V.  Reese  697,  699 

Folsom  i\  Belknap  160 

Fontaine  v.  Beers  162 

Forbush  v.  Goodwin  167 

Ford  V.  Russell  130 

Fordiff"  V.  Schrugham  693 

Foreman  v-  Hard  wick  710 

Forster  v.  Gillam  612 

Forfy.  Burch  720,  722 

Fosdick  V.  Barr  716 

Foster  v.  Briggs  635 

V.  Ecjuitable,  &o.  256,  258,  263 

V.  Trustees,  &c.  695 

Fowler  v.  Rice  41 

V.  Rust  701 

Fox  V.  Clark  623 

V.  Lipe  280,  591 

Frail  v.  Ellis  675,  684 

Fraley  v.  Steinmetz  504 

Francis  v.  Porter  351 

Frankland  v.  Moulton  229 

PVanklin  v.  Gorham  235 

Frazee  v.  Inslee  83 

Frazer  v.  Jones  718 


INDEX    TO    CASES    CITED. 


XXV 


PAGE 

Freeby  u.  Tapper  417 

Freeman  I).  Baldwin  37 

V.  Edwards  188 

V.  McGaw  542 

Frelintrhiivsen  v.  Colden  328 

French  y. "Fuller  192 

V.  Kennedy  295 

V.  Lyon  101 

I'.  Sturdivant  42 

Friedly  v.  Hamilton  45 

Friesmuth  v.  Ajiawam,  &c.  259 

Frizzle  v.  Dearth  1  74 

Frost  V.  Beekman  725 

Frothinghani  v.  McCusick  228,  229 

V.  Shephard  1 7 

Frye  i^.Banli,  &e.  495 

Fuller  r.  Bennett  723 

V.  Hodgdon  90 

V.  Piatt  41 

V.  VVadsworth  192 

Furbush  V.  Goodwin      168,  245,  481, 

517,  539,  562,  571 


G. 


Gage  V.  Ward  436 

Gahee  v.  Sneed  671 

Gaither  v.  Teague  100 

Gale  V.  Mensing  520 

Gait  I'.  Jac-kson  100 

Gambril  v.  Doe  158 

V.  Rose  590 

Gann  v.  Chester  692 

Garber  v.  Henry  325 

Garden  v.  Ingam  270 

Gardner  v.  Astor  536 

V.  Finley  8 

V.  Gerrish  127 

V.  Heartt  233 

Garroch  v.  Sherman  237,  240 

Garwood  v.  Eldridge  331,  544 

Gates  V.  Adams  371,  525 

Gault  V.  M'Grath  486 

Gay  V.  ]\linot  287 

General  v.  Hardy  120 

General,  &c.  i;.  U.  S.,  &c.  608,  715, 

718 

Gentry  v.  Gentry  84 

George  v.  Baker  275,  281 

George's,  &c.  v.  Detwold  170 

Gerrish  v.  Mason  11,519 

Ghiselin  v.  Fergus  695 

Gibson  v.  Bailey  288,  289 

V.  Crehore  376,438,441,  444, 

454,  456,  545 

VOL.   I.  C 


PAGE 

Gibson  v.  EUer  26 

V.  Farley  315 

V.  Ingo  644 

V.  M'Cormick  378 

V.  Taylor  173 

Gilbert  v.  Averill  375 

V.  Dyneley  451 

V.  Maggard  13 

Gilkeson  v.  Snyder  663 

Gill  ('.  Lvon  366 

V.  M'Attee  668,  707,  720 

V.  Finney  296,  724 

Gilleland  y.  Failing  611 

Giliett  V.  Bah'om  181 

V.  Campbell  241,  563 

V.  Eaton  515 

V.  Powell  483 

Gillis  V.  Martin  40 

(jiiman  v.  Brown  6  75 

(iilson  V.  Gilson  122 

(jivan  V.  Tout  251 

Given  I'.  Doe  271 

V.  Marr  537 

Givens  v.  M'Calmont  465 

Glass  V.  Ellison  277 

r.  Warwick  11 

Glasscock  0.  Glasscock  695 

V.  Robinson  706 

Glenn  v.  Whipple  125 

Giidden  v.  Hunt  560,  573 

Gliildon  I'.  Andrews  372 

Glisson  V.  Hill  61 

Glover  V.  Payn  99 

Godeffroy  r.  Caldwell  573 

Godfrey  v.  Rogers  86 

V.  Watson  468 

Goldsmith  v.  Brown  291 

Gooch  V.  Gooch  14 

Goodburn  v.  Stevens  376 

Goodell's  case  6 

Goodloe  V.  Clay  355 

Goodman  r.  Grierson  99,  111 

V.  Kine  232 

Goodtitle  v.  Morgan  209,  658 

Goodwin  v.  Richardson  238,  276 

Gordon  v.  Graham  321 

V.  Hobiirt  233,  593,  601 

V.  Lewis    449,  450,  454,  461, 

471,  474,  479 

Gore  V.  Jenness  231,  233 

Goring  v.  Shreve  407 

Gorson  V.  Blakey  119 

Gossin  ?\  Brown  345 

Gothard  v.  Flynn  656 

Gould  V.  Newman  271 

t'.  Tancred  29 


XXVI 


INDEX   TO    GASES    CITED. 


Gouldsworth  v.  Knights 

PAGE 

209 

Haffley  v.  Maier 

PA08 

608 

Grace  v.  Men-er 

626 

629 

Haggarty  v.  Allaire 

87 

Grarrgs  V.  Bailey 

704 

Hagthorpe  v.  Hook 

461 

,465 

Graham  v.  King 

334 

350 

Hahn's,  &c. 

331 

V.  Newman 

254 

Haigh 

648 

Grant  v.  Bissett 

308 

Halev  V.  Bennett 

661 

V.  Dodge 

3 

Hall'j;.  Bell 

339 

V.  Duane 

399 

V.  Byrne 

117 

V.  Mills 

673 

V.  Dench 

159 

V.  V.  S.  Bank 

308 

V.  M'Duff 

656 

Graves  v.  M'Call 

683 

V.  Redding 

563 

V.  Sayre 

155 

V.  Savill                       44,  50 

153 

Gray  v.  Baldwin 

226 

r.  The  Sullivan,  &c. 

5 

r.  Ide 

476 

V.  Tufts 

293 

V.  Jenks           29,  156 

299, 

519 

Halleck  r.  Smith 

eoi 

704 

Graydon  v.  Church        522 

559 

561 

Halliwell  v.  Tanner 

377 

383 

Great  Falls  v.  Worcester 

158, 

163, 

Halsey  v.  Reed                363 

365 

377 

169, 

571 

Hamet  v.  Dundass 

49 

Gree  v.  Lord 

454 

H;imilton,  &c.  v.  Reynolds 

291 

Green  v.  Demoss 

694, 

703 

Hammond  v.  Washington 

577 

V.  Fowler 

677 

Hammonds  v.  Hopkins      39,  7  7 

391 

V.  Hart 

240 

Hampton  v.  Hodges 

227 

V.  Kemp 

601 

V.  Spencer 

54 

V.  Price 

625 

Hanna  v.  Countryman 

167 

V.  Ramage 

362 

V.  Wilson 

698 

V.  Storm 

507 

Handy  v.  Commercial,  &c. 

485 

V.  Tanner 

119 

309 

Hanson  v.  Derby 

233 

234 

V.  Tyler 

599 

Harbinson  v.  Harrell 

469 

729 

Greenwood  v.  Murdock 

8 

Hare  v.  Van  Deusen 

675 

V.  Taylor 

332 

Harmer  v.  Priestley 

22 

Greer  v.  Chester 

310 

Harmon  v.  Short 

167 

Greixg  V.  Wells 

626 

Harper  v.  Barsh 

292 

Griffin  V.  Atlantic,  &c. 

259 

Harriett,  &c. 

286 

V.  Cranston 

291 

Harrington  v.  Price 

659 

Griggsby  v.  Hair 

703 

704 

Harris  v.  Norton 

719 

Grimes  v.  Doe 

593 

Harrison  v.  Eldridge 

512 

V.  Kimball 

531 

V.  Ferth 

300 

Grosvenor  v.  Atlantic,  &c. 

257 

261 

V.  Lemon 

34 

V.  Day 

144 

V.  Phillips,  &c. 

83 

Groton  v.  Boxborough 

164 

186 

V.  Roberts 

629 

Grover  v.  Thatcher 

524 

539 

V.  Trustees,  &c.  3 

7,4:2, 

520 

Grow  V.  Albee 

604 

V.  Wyse 

472 

Crowning  v.  Behn 

696 

Hart  V.  Chalker 

297 

Grugeon  v.  Gerrard 

339 

V.  Goldsmith 

593 

Gubbiiis  V.  Creed 

89 

Hartpole  v.  Walsh 

5 

Gurney  v.  Sepping 

565 

Hartshorn  v.  Hubbard 

171 

Guy  V.  Carrie  re 

4 

Hartwell  v.  Blocker 
Hartz  V.  Woods 
Harvie  v.  Banks 

116 
415 
165 

H. 

Haskell  V.  Haskell 
Hastings  v.  Adams 

533 

194 

Hackett  v.  Reynolds 

656 

V.  Stevens 

444, 

445 

Hadley  v.  Chapin 

503 

Hatch  V.  Dwight 

238 

V.  Houghton 

15 

V.  Kimball 

123, 

535 

Hadlock  V.  Bulfinch 

483, 

499, 

Hatz's,  &c. 

11 

518 

Heighway  v.  Pendleton 

158, 

531 

INDEX   TO    CASES   CITED. 


XXVll 


PAGE 

PAGE 

Helmbold  v.  Man 

535 

Hodgson  V.  Gascoigne 

181 

Hemenway  v.  Bassett     494 

,509 

,512 

V.  Shaw 

343 

,  344,  348 

V.  Stewart 

563 

Hodson  V.  Treat 

159 

Henderson  v.  Burton 

671 

Hoffman  v.  Lee 

628 

V.  Herrod 

253 

V.  M'Call 

391 

V.  Pilgrim 

581 

Hogan  V.  Lepretre 

390 

Hendricks  v.  Robinson 

317 

V.  Stone 

449 

,  454, 466 

Hendrickson's,  &f. 

329 

Hogel  V.  Lindell 

66 

Henkle  v.  AUstadt 

360 

Hoggatt  V.  Wade 

682,  685 

Henry  v.  Bell 

116 

Hogins  V.  Arnold 

34 

V.  Davis 

69 

Hoitt  V.  Webb 

535 

Henry's  case 

445 

Holabird  v.  Burr    337, 

351 

450,  453 

Henshaw  v.  Wells 

200 

341 

Hoi  brook  v.  Finney 

34 

Hensicker  i;.  Lamborn 

491 

V.  Worcester 

,&c. 

539 

Hepburn  v.  Snyder 

67 

Holden  r.  Pike 

507,  535 

Her  bach  v.  Riley 

707 

Holliday  r.  Franklin,  &c. 

728 

Herbert  r.  Han  rick 

166 

729 

HoUister  v.  Dillon 

577 

V.  Schoficld 

* 

671 

Holman  v.  Bank,  &c. 

367 

Herriman  v.  Skillraan 

360 

V.  Bailey 

496 

Hetfield  v.  Newton 

601 

Holmes  v.  Fisher 

172 

Hewett  V.  Snare 

380 

V.  Fresh 

49 

Hewitt  V.  i.oosemore 

658 

V.  Grant 

38,  58,  99 

Heyer  v.  Pruyn 

366 

Holridge  v.  Gillespie 

77,  90 

Hicks  V.  Bingham 

279 

Holton  V.  Button 

605 

V.  Hicks 

78 

,  113 

Hone  V.  Fisher 

104 

Hiern  v.  Mill 

655 

Honie  v.  Chittenden 

371 

Hiester  v.  Midiera 

69 

Honore  v.  Bakewell 

647 

, 649,  650 

Higgins  V.  Frankis 

275 

344 

Hoogland  v.  Watt 

429 

Higginson  v.  Dall 

255 

Hoole  V.  Attorney-General 

721 

Higgon  V.  Mortimer 

228 

Hooper 

305, 649 

Hiles  I'.  Moore 

478 

Hooper  v.  Ramsbottom 

338,  659 

Hill  V.  Jordan 

197 

V.  Wilson 

153 

V.  ]\Ioore 

167, 

538 

Hoopes  V.  Bailey 

100,  107 

V.  More 

515 

Hopkins  v.  Garrard 

685 

V.  Payson 

514, 

618 

D.  Stephenson 

100,461 

r.  Robertson 

21 

Hopper  V.  Sisco 

311 

V.  Smith 

407 

Horbach  v.  Riley 

706 

r.  West 

518 

Horlock  V.  Smith 

456,457 

Hildreth  v.  Jones 

434 

Horton  v.  Horner 

705 

Hilliard  v.  Allen 

452 

Hough  V.  Canby 

700 

Hills  I'.  Eiiott                     99 

116 

535 

V.  De  Forest 

493 

Hilt  V.  Holliday 

396 

V.  Osborne 

251 

Hilton  V.  Cathcrwood 

236, 

352 

Houseman  r.  Chase 

608 

t'.  Crist 

350 

Houston  V.  Stanton       ( 

366, 

676,  688, 

Hinchman  v.  Emans 

536 

707 

Hinson  i:  Partee 

65 

flovey  V.  Holcomb 

66 

Hitchcock  V.  Harrington 

407 

Howard  v.  Davis 

3 

,  11,  671 

V.  U.  S.,  &c. 

520 

V.  Gresham 

481,  512, 

Hitchman  v.  Walton 

185, 

189 

574 

Hitner  v.  Ege 

420 

V.  Halsey 

360, 369 

Hoag  ('.  Katlibun 

482 

V.  Harris 

68,  70 

Hobart  v.  Sanborn 

167 

V.  Howard 

12, 

519,  556 

Hobson  V.  Bell 

136 

r.  Robinson 

155,  162 

Hockley  v.  Bantock 

653 

Howard,  &c.  v.  Mclntyre 

16, 618 

Hodge  /.'.  Attorney-General 

653 

Howe  V.  Lewis 

56,  493 

Hodgman  v.  Hitchcock 

501 

V.  Russell 

332 

xxvm 


INDEX   TO    CASES    CITED. 


Howe  V.  Woodruff 
Hewlett  V.  Thompson 
Hoxie  V.  Carr 
Hovt  V.  Bradley 

V.  Doughty 

V.  Martense 
Hubbard  v.  Ascutney,  &c. 
V.  Savage 
V.  Turner 
Huckins  ".  Straw 
Hudson  V.  Ishell 
Hughes  V.  Edwards  1 

V.  Graves 
V.  Kearney 
V.  Worley 
Hugunin  v.  Starkweather 
Hulet  V.  Sollard 
Huling  V.  Drexell 
Hulings  V.  Guthrie 
Humphrey  v.  Harrison 
Humphreys  v.  Snyder 
Hungerford  t'.  Clay 
Hunt  V.  Acre 
V.  Clark 
V.  Dupuy 
V.  Hunt        165,  166 

V.  Maynard 
V.  Tyler 
Huntington  v.  Smith 

Hurd  I'.  Robinson 
Hurst  V.  Hurst 
Hutchins  V.  Carleton 

V.  Cleveland,  &c. 
Hutchinson  v.  Dearing 
V.  Patrick 
Hyde  v.  Dallaway 
Hyland  v.  Stafford 
Hyndman  v.  Hyndman 
Hyues  v.  Rogers 


PARE 

131, 435 

697 

162 

119 

276 

90 

403,  405 

32-2 

573 

163 

66 

0,  49,  292, 

4  74 

180 

673,  688 

311 

487 

28 

88 

718 

227 

41 

255 

445 

640 

12 

,  238,  524, 

540 

56,  391 

81,  404 

249,  277, 

278 

296 

723 

535,  539 

258 

194,  200 

660 

166 

603 

137,  142 

489 


J. 


PAGE 

Jack  V.  AVoods  91 

Jackman  v.  Halleck  705 

Jackson  v.  Bowen  597 

V.  Bronson  163,  239 

V.  Colden  592 

V.  Craft  516 

V.  Davis  481 

V.  De  Lancy  285 

V.  Farmers',  &c.  260 

V.  Ford  48 

r.  Fuller  197 

V.  Henry  598 

V.  Hopkins  192 

V.  Jackson  57 

V.  Laughhead  193,  197 

V.  Massachusetts,  &c.         160 


V.  Myers 
r.  Packard 
V.  Pierce 
V.  Stackhouse 

V.  Tift 
V.  Vernon 
V.  Willard 


192,  239 
588 
18 
197 
520 
223 
155,  237,  240, 
407 
204 
716 


Ibbetson  v.  Ibhetson 

386 

Ibbotson  V.  Rhodes 

626 

Ing  V.  Cromwell 

189 

Inge  I'.  Boardman 

376 

Insurance  Co.  v.  Woodruff 

256 

Ipswich,  &c.  V.  Story 

502 

Ireson  v.  Denn 

305 

Irwin  V.  Davidson 

661, 

675 

V.  Longworth 

354 

355 

V.  Tabb 

336 

Jacob  V.  iMilford 

Jacoway  v.  Gault 

Jacques  v.  Weeks    34,  45,  46,  60,  73 

James  y.  Biou  395 

V.  Fiske  11 

r.  Johnson  47,317,578 

V.  Morey     316,  521,  538,  567, 
573,  641 

V.  Rice 
Jamieson  v.  Bruce 
Jaques  v.  Esler  , 
Jarvis  v.  Rogers 

V.  Wiiitman 

V.  Woodruff 
Jason  V.  Eyres 
Jefferson  v.  Prentiss 
Jencks  v.  Alexander 
Jenkins  v.  Eldredge 

V.  Quincy,  &c. 
Jenness  i'.  Robinson 
Jennings  v.  Ward 
r.  Wood 
Jerinison  r.  Hapgood 
Jen  not  r.  Cooly 
Jerome  v.  Seymour 
Jewett  V.  Hart 

V.  Partridge 
Johnson  v.  Bartlett 
V.  Bourne 
If.  Brown 


649 

650 

714 

158 

,  170 

613 

317 

347 

11 

53,  70 

253 

148 

454 

153 

,255 

279 
405 

86.87 

520 

444 

179 

625 

240 

166 

287, 

288 

317, 

507 

245, 

276 

INDEX   TO    CASES    CITED. 


XXIX 


PAGE 

Johnson  v.  Candage  247,  4(J3 

17.  Cavvthorn  671 

V.  Dopkins  28 

V.  Elliot  517 

V.  Gere  614 

V.  Hart  240 

r.  Johnson  367,544 

V.  Jones  200 

V.  Nations  510 

V.  Kiee  454 

V.  Slawson  660 

V.  Stagg  65  7 

V.  Stevens  420 

V.  Sugg  69  7 

t'.  White  227,  3G5 

Johnson's,  &c.  327 

Johnston  v.  Union,  &c.  698 

Jones  ?.  Bruce  380 

V.  Clarke  207 

V.  Hubbard  591 

V.  Phelps  3-28 

V.  Quinnipiack,  &c.  352 

V.  Smith       305,  475,  640,    723 

V.  Thomas  167,  181 

Jordan  v.  Fenno  66 

Joynes  v.  Statham  54 

Judd  V.  Flint  646 

Jumel  V.  Jumel  378 

Justice  V.  Uhl  330 


K. 


Kauffelt  V.  Bower  670 

Kearney  v.  Post  27 

Keech  V.  Hall  182,  197,  274 

Kelleran  v.  Brown  55 

Kelly  V.  Bryan  61 

V.  Payne  661,  703 

r.  Perseverance,  &c.  331 

V.  Thompson  37,  38 

V.  Wood  516 

Kellogg  V.  Rand  360 

V.  Rockwell  343,  450 

Kelso  V.  Kelly  330 

Kemp  V.  Earp  62 

Kennaird  w.  Adams  621 

Kennedy  o.  Green  723 

V.  Nedrow  421 

V.  Ross  292 

Kenney  v.  McCullough  18 

Kent  V.  AUbritain  39 

V.  Kensington  180 

V.  Laflan  396 

Kercheval  700 


Kernochan  v.  New  York,  &c 

Kerr  v.  Gilmore 

V.  Hazlerigg 
Ketchum  v.  Johnson 
Keyes  r.  \Vood 
Keys  V.  Williams 
Kilborn  v.  Robbins 


PAGE 

256, 

260 

37 

702 

101 

24  7 

651,  652 

329,  331,  358 


Killinger  ?;.  Reidenhauer  437 

Kilpatrick  i\  Kilpatrick  685 

Kimball  v.  Lockwood  151,  200 

Kimmell  v.  Willard  333 

Kinnaman  v.  Henry  503 

King  3i»4 

King  V.  Bromley  75 

V.  Duntz  149 

V.  Ellington  150 

V.  Harrmg  247 

V.  Harrington  728 

V.  Heenan  139 

V.  King  109 

V.  Little  56 

V.  M'Vickar  340,  350,  531,548, 

718 

V.  Newman  101 

V.  St.  Michael's,  &c.      154,  164 

V.  The  Merchants',  &c.         390 

V.  The  State,  &c.  21,  256,  2G0, 

269,  390,  469 

r.  Whitely  117,362 

Kinley  v.  Hill  495,  543 

Kinna  v.  Smith  236 

Kinnear  v.  Lowell  545 

Kinney  r.  M'Cullough  18 

Kinnoul  v.  Money  13 

Kintner  v.  Biair  25,  44 

Kirke  v.  Kirke  380 

Kirksey  v.  Mitchell  707 

Kittredge  v.  M'Laughlin  455 

V.  Rockingham,  &c.       256, 

257,  269 

695, 699 

693 

416,  521 

192 


Kleiser  v.  Scott 
Kline  v.  Lewis 
Klock  V.  Croukhite 
Knaub  v.  Essick 


Knickerbacker  v.  Boutwell  360,  543, 

719 
Knisely  v.  Williams  698 

Knowles  v.  Lawton        361,  520,  552 
V.  Maynard  202 

Knox  V.  Moatz  357 

Kortright  t'.  Cady  4  70 

Kramer  v.  Bank,  &c.  319,  354 

Kunkle  v.  Wolfersberger       100,  105 
Kyles  V.  Tait  698,  709 


XXX 


INDEX   TO    CASES    CITED. 


L. 


PAGE 

Laberjre  v.  Chauvin  251 

Lackey  v.  Holbrook  168 

Ladd  >\  WijjTLMn  524,  535 

Ladv,  &c.  V.  M'Namara  561,  562 

Lafcirge  y.  Bell  161,361, 

367 

V.  Herter  344,  348 

LajTow  V.  Badollet  679 

Lake  v.  Brutton  351 

Lamb  v.  Foss  153 

Lambert  v.  Hall  293,  54  7 
L'Amoreux  v.  Vandenburgli        626, 

630 

Lamson  v.  Falls  569 

V.  Sutherland  311 

Lancaster  v.  Evors  13 

Langdoii  v.  Keith  247 

V.  Paul  229 

Langston  654 

Lane  v.  Hitchcock  232 

V.  King  181,  192 

V.  Losee  587 

Lanfair  v.  Lanfair  121 

Langlcy  r.  Bartlett  483 

Langtoii  V.  Langton  475 

Laiigstatl'e  o.  Fen  wick  476 

Lanoy  v.  Athol  340 

V.  Duke,  &c.  342 

Larimer's,  &c.  3 

Larncd  r.  Clark  187 

Larrabee  v.  Lambert  269 

Lasselle  v.  Barnett  611 

Latimer  v.  Moore  448 

Latouche  v.  Dunsany  718 

Lauman  706,  711 

Lawrence  v.  Delano  626 

V.  Knapp  248 

V.  Lane  490 

V.  Lawrence  511 

Lea  V.  Dozier  347 

Leavitt  v.  Pell  627 

Ledyard  v.  Butler  144 

V.  Ciiapin  481 

V.  Evans  66 

Lee  V.  iMuiiroe  641 

?;.  Porter  18,616 

V.  Stone  313 

Leeds  v.  Cameron  321 

Leffler  c.  Armstrong  129,  141, 

145 

Leggett  V.  Bullock  716 

Leman  v.  Newnham  380 

V.  Whitlev  681 


PAQB 

Lewis  V.  Caperton 

691 

V.  De  Forest 

321, 

351, 
471 

V.  Menzel 

621 

V.  Nangle 

T3 

,381 

V.  Rolands 

66 

V.  Smith 

426 

V.  Starke 

253 

V.  Wayne 

324 

Lewthwaite  v.  Clarkson 

652 

Ligon  I'.  Alexander 

678 

Lincoln  v.  Purcell 

683 

Lindley  v.  Sharp 

66 

Lingan  v.  Henderson 

708 

Little  V.  Brown 

390 

,  675- 

Littlcfield  V.  Crocker 

436 

Littlejohn  v.  Gordon 

708 

Livingston  i\  Jones 

563 

Lloyd  V.  Mason 

478 

V.  Scott 

600 

Loaring 

673 

Locke  V.  North  American,  &c.      255 

Lockwood  V.  Mitchell  586 

Lofsky  V.  Manger  4  78 

Long  V.  Storie  477,  592 

LongstatT  t;.  Meagoe  461 

Longstreet  v.  Shipman  524 

Longwith  V.  Butler  131 
Loomer  y.  Wheelwright    11,  16,  536, 

^  555 

Loomis  V.  Lincoln  663 

Loring  V.  Cook  279 

V.  Manufacturers',  &c.        257 

Loud  I'.  Lane  396,  551 

Lovering  i'.  Fogg  37,  160 

Lovett  V.  Demarest  722 

V.  Dimond  571 

Lowell  V.  Mutual,  &c.  712 

V.  Shaw  156 

Lowndes  v.  Chisholm  461 

Lowrey  v.  Tew  397 

Loyd  V.  Currin  2 

Lucas  V.  Comerford  223 

Ludlow  V.  Grayall  713 
Lull  V.  Matthews               22,  186,  232 

Lund  V.  Lund  36 

r.  Woods  435 

Lyford  v.  Ross  562 

Lyle  V.  Ducomb  317 

Lyman  v.  Green           .  690 

V.  Little  334,  468 

V.  Lyman  360,  368 

Lynch  v.  Dalzell  257 

V.  Utica,  &c.  25 

Lyster  v.  Dolland  408 


INDEX    TO    CASES    CITED. 


XXXI 


M. 


M'Alpin  V.  Burnett 

M'Brayer  v.  Collins 
M'Cabe  v.  Bellows 
M'Call  r.  Lenox 
M'Cammon  v.  Worrail 
M'Candlisii  v.  Keen 
M'Carron  v.  Cassidy 
M'Clure  V.  Harris 
M'Connel  v.  Holobush 

M'Connell  v.  Hodson 
M'Cormiek  v.  Digby 


PAGE 

678,  683,  686, 

702 

683,  687,  702 

440,  441, 443 

194,  2»0 

329 

680 

449,  460 

699 

395,  450, 

461,  465 

232 

406,  486,  563, 

629 

M'Cown  i;.  Jones  626 

M'Cumber  v.  Gilraan  461,  462 

M'Daniels  v.  Bank,  &c.  513 

V.  Colvin        316,  320,  324 
V.  Lapliam  455,  513 

M'Dermott  v.  Bank,  &c.  345 

M'Donald  v.  Black  25  7 

V.  M'Donald  481,  484 

M'Dougald  V.  Capron  398 

M'Gan  V.  Marshall  38,  237,  27  7 

M'Gintry  v.  Reeves  611 

M'Given  v.  Wlieelock  501,  536 

M'Goodwin  v.  Stephenson  158 

M'Gready  v.  M'Gready 
M'Hendry  v.  Reilly 
M'Intyre  v.  Humphreys 
V.  Whitfield 
V.  Williamson 
M'Isaacs  v.  Hobbs 
M'lver  V.  Cherry 
M'Kecknie  v.  Hoskins 
M'Killip  V.  M'KilHp 
M'Kimni  I'.  Mason 
M'Kircher  ii.  Hawley 
M'Knight  V.  Brady 
M'Lanahan  u.  M'Lanahan 

V.  Reeside 
M'Laughliii  V.  Shepherd 
M'Laurin  v.  Wright 
M'Lean  v.  Lafayette,  &c. 
V.  Ragsdale 
V.  Towle 
M'Lemore  v.  Mabson 
M'Mahan  v.  Kimball 
M'Menomy  ( .  Murray 
M'Millan  v.  Goidon 

r.  Richards 
M'Murray  v.  Connor 
M'Nair  r.  Lott 
M'Reth  V.  Symmons 


86 

690 

57 

167 
526 
510 
423 
721 
679 
178 
203 
683 

40 
670 

48 

61 
367 
'  423 
345 
616 
4  23 
393 
558 
236,  482 
585 

32 
697 


344, 


PAGE 

M'Taggart  v.  Thompson  159 

M'V.iy  V.  Bloodgood  254 

]\Lickey  V.  Brownfield  610 

Mackreth  v.  Symmons  625,  697,  712 

Macomber  v.  Mutual,  &c.  260,  263, 

540 

Maaee  D.  Beattv  728 

Magill  v.  Hinsdale  207 

Magruder  v.  Offutt  401 

V.  Peter  603,  708 

Major  V.  Ward  137 

Makenzie  v.  Gordon  332 

Malin  r.  Coult  689 

Mallett  V.  Page  532 

Mallory  v.  Aspinwall  520,  589 

V.  Hitchcock  11,  535 

Mandeville  c.  Welch  652 

Manhattan,  &c.  v.  Evertson  716 

Manigault  v.  Deas  503 

Manlove  v.  Bale  140,  698 
Manly  v.  Slason      671,  697,  698,  700 

Maii/ell,  &c.  378 

Mansony  v.  U.  S.,  &c.  211 

Mantz  r.  Buchanan  426 
Manufacturers',  &c.  v.  Bank,  &c.    34, 

45 

Maples  V.  Maples  622 

Mardeti  i\  Babcock  36,  622 

Margrave  v.  Le  Hooke  304 

Marine,  &c.  v.  Biars  468 

V.  Early  669 

Markell  v.  Eichelberger  485 

Marlow  i-.  Smith  285 

Marcjuis.  &c.  v.  Higgens  87 

Marriott  v.  Givens  129 

V.  Handy  525 

Marsh  v.  Austin  279 

V.  Pike  361,  363 

V.  Rice  551 

Marshal  r.  Lewis  10 

Marshall  v.  Billingsley  573,  619 

V.  Stewart  43,  83 

Marston  v.  Brackett        619,  624,  636 

Maitha,  Siv.  134 

Martin  v.  Jackson  161 

V.  Lundie  705 

I'.  Mowlin  272,  274 

V.  Rapelye  295 

Martineau  v.  M'Collum  574 

Marvin  c.  Dennison  163 

V.  Vedder  494 

Maryland,  &c.  v.  Wingert  48  7 

Mason,  &c.  380 

V.  Hearne  25,  61 

r.  Moody  96 

Massaker  v.  Mackerley  512,  514 


XXXll 


INDEX   TO    CASES    CITED. 


PAGE  1 

Massachusetts,  &c.  v.  Wilson  208,  21 1 

Mathews  v.  Aikin  343,  3(i6 

Mathewson  v.  Smith  437 

Matthews  v.  Waliwyn   237,  571,  573, 

578 

Mattheson  r.  Hardwicke  384 

Matthie  c  P^d wards  J37 

Maunce  v.  Byars  684 

Maxwell  V.  Moiitacute  54 

May  V.  P^astin  69,  90 

V.  Lewis  671 

Maybutiy  v.  Brien  426 

Mayham  v.  Coombs  728 

Maynard  r.  Hunt  515 

Mayo  V.  Fletcher  28,  155 

I'.  Judah  87 

V.  Tompkins  360 

Mayor,  &c.  v.  Blamire  223 

Meacham  v  Fitchburg,  &c.  152 

Mead  v.  York  495 

Meaden  v.  Sealy  479 

Meclianics',  &c.  v.  Edwards  602 

Medley  v.  Davis  675,  6  76 

V.  Mask  569 

Megginsoti  v.  Harper  204 

Meigs  r.  Dimock  672,680 

Melland  c.  Gray  3-20 

Mellor  I'.  Lees  104,  110 

Meltenberizer  v.  Beacom  255 

Mendenhail  v.  West,  &c.  9 

Mennude  c.  Delaire  393 

Meritliew  c.  Sisson  150 

Merriain  v.  Barton'  466 

Merrills  o.  Swift  297 

Merritt  c.  Lambert  21,  516 

Metropolitan,  &c.  v.  Brown  210 

Mevey  371 

Miami,  &c.  v.  Bank,  &c.  49,  67,  90, 

342 

Michener  y.  Cavender  11 

Miokles  ('.  Dillaye  466 

v.  Townsend  158 

Middleton  «.  Middleton  376 

Miles  V.  Gray  252 

Miller  V.  Donaldson  491 

u.  Helm  719 

V.  Lincoln  450 

r.Marckle  611 

V.  ]\loore  2 

I'.  Musselman  351 

V.  Stump  426,  690 

r.  Tipton  587 

V.  Townsend  522,  535 

V.  Wack  352 

V.  Wliittier  320,  468 

Mills  V.  Comstock  7 1 9 


PAGE 

Mills  V.  Darling  25,37 

V,  Mills  79 

V.  Van  Voorhies  3 

Milton  V.  Dunn  203,  645 

Minis  V.  Lockett    671,  683,  687,  700, 

702 

V.  Macon       666,  667,  681,  709 

Miner  z;.  Stevens  167,  183 

Mitchell  V.  Burn  ham  4,  580 

V.  Preston  586 

Mix  V.  Cowles  115,  323 

V.  Plotchkiss  469,  470,  719 

Mobile,  &c.  v.  Hunt  565 

V.  Talman  291,  295,  316 

Mocatta  v.  Murgatroyd  632 

Montgomery  v.  Bruere    29,  422,  424 

V.  Chadwick        26,  462 

Mooney  v.  Brinkley  167 

Moore  v.  Anders  661 

V.  Cable  464 

V.  Harrisburg,  &c.       550,  566 

V.  Holcombe  671 

V.  Lesueur  708 

V.  Madden  43 

V.  Moberly  351,  356 

V.  Overseers,  &c.  165 

i'.  Poland  10 

V.  Raymond  702 

V.  Sliultz  502 

V.  Ware  247 

Moore's  Appeal  577 

Mordecai  c.  Parker  407 

Morey  v.  M'Guire  186 

Morgan  v.  Chamberlain  525 

r.  Davis  509,  512,  517 

V.  Morgan  390 

V.  I'ike  2 

V.  Tipton  587 

V.  Woodward  167 

Moreton  r.  Buckner  129,  496 

V.  Harrison  708 

Morford  v.  Bliss  630 

Moroney's,  &c.  331 

Morris  v.  P'loyd  601,  602 

I'.  McConnaughy  382 

V.  Nixon  49,  51,  65,  112 

V.  Oakford  363,  547 

Morrison  v.  Bean  9,  129 

V.  Buckner  476 

I'.  McLeod  178,233 

Morse  v.  Clayton  482 

Mosely  v.  Garrett  17,  707 

Moses  V.  Murgatroyd  56,  137 

Moss  V.  Gallimore  183,  212 

Motley  V.  Manufacturers',  &c.        255 

Mott  i;.  Clark  415,  581,  582 


INDEX   TO    CASES    CITED. 


XXXlll 


PAGE 

PAGB 

Mott  V.  Harrington 

63 

Northrup  v.  Cross 

714 

V.  Walk  ley 

391 

Norton  v.  Coons 

344 

Monrn-e  v.  Byars 

632 

r.  Stone 

727 

728 

Mount  i:  Suydaiu 

678 

V.  Warner 

332 

Mullanphy  v.  Simpson 

403 

r.  Warren 

560 

Mumfbrd  v.  American,  &c. 

586 

Norvel  V.  Johnson 

703 

Munro  v.  Merchant 

716 

Noi'wich  V.  Hubbard 

151 

,  248 

M  unlock 

227 

,  228 

Nottingham  v.  Calvert 

2 

Murdock  i\  Chapman 

157 

Noyes  v.  Clark 

583 

V.  Chenango,  &c. 

266 

,  635 

V.  Sturdivant 

48 

Murphey  v.  Trigg 

66 

Nugent  V.  Riley 

40 

Muridiy  v.  Calley         23,  68,  96 

,  115 

Murray  v.  Abie 

702 

V.  Barney 

315 

0. 

Myers  r.  White 

199 

Oakham  v.  Rutland 

164 

Ogden  V.  Grant 

393 

394 

N. 

Ogle  r.  Ship 

Ohio,  &c.  V.  Ledyard 

283 
724 

Nairn  v.  Prowse 

673 

Oldham  V.  Halley 

100 

Napier  v.  Elam 

612 

V.  Olley 

169 

Nash  V.  Preston 

23 

Olmstead  v.  Elder   76,  162 

,  239 

,  538 

V.  Spotrord 

12 

Ord  V.  M'Kee 

236 

252 

Natcliez  v.  Minor 

253 

614 

Orde  V.  Heming 

5 

Naylor  v.  Tlirockmorton 

716 

Oruisby  v.  Phillips 

520 

Neale  v.  Hagthorpe       454, 

465, 

466, 

V.  Tarascon 

141 

142 

4  69 

Orr  V.  Had  ley 

165 

Neas's,  &c. 

664 

V.  Hancock 

296 

Neefiis  V.  Vanderveer 

591 

Orvis  V.  Newell 

312 

349 

Neeson  v.  Ciarkson 

681 

Osborn  v.  Carr 

312 

Neil  V.  Kinney                664 

682 

700 

V.  Tunis 

281 

Neilson  v.  Lagow 

160 

Otis  V.  Sill 

626 

Nelson  r.  Boyce 

314 

Ott  V.  King 

668 

V.  Lee 

512 

Ottaway,  &c.  v.  Murray 

88 

Neptune,  &c.  v-  Dorsey 

558 

Otter  i;.  Vaux 

144 

Newall  V.  Wright 

216 

334 

Ottman  v.  Moak 

344 

Newcomb  i'.  Bonham 

34,  68 

Ouseley  v.  Anstruther 

380 

Newell  V.  llurlburt 

357 

Overton  v.  Bigelow 

65,  88 

New  England,  &c.  v.  Merriam  3, 

328, 

Owen  V.  Moore      663,  671, 

677, 

683 

511,  515,  535 

539 

541 

Oxenham  r.  Esdaile 

713 

New  Hampshire,  &c.  v.  W^illard  292, 

Oxford  V.  Rodney 

385 

320 

485 

Newton  V.  Cook 

4U, 

444 

New  York  Life,  &c.  v.  Smith 

581 

P. 

New  York,  &c.  v.  Howard 

505 

V.  I*eck 

724 

Packard  v.  Agawam,  &c. 

258 

V.  W^hite 

725 

Page  V.  Broom 

216, 

455 

Nichols  V.  Baxter 

257, 

268 

V.  Foster 

100, 

468 

V.  Cosset 

589 

V.  Pierce 

241 

V.  Reynolds 

49, 

166 

V.  Robinson 

228 

Niles  V.  Nye 

435 

Pain  V.  Smith 

652 

Noel  V.  Jevon 

23 

Paine  v.  French 

252, 

633 

Norris  v.  Wilkinson 

648 

V.  Mason 

28, 

720 

Norrish  v.  Marshall 

5  73 

Palmer 

697 

North  V.  Belden 

296 

Palmer  v.  Foote 

411 

c.  Crowell 

316 

V.  Fovvley  308,  310, 

339, 

341 

Northampton,  &c.  v.  Ames 

198 

V.  Gurnsey 

26 

XXXIV 


INDEX   TO    CASES    CITED. 


PAGE 

Palmer  v.  Mead 

623 

V.  Yates 

675 

Palmes  v.  Danby 

44 

Pannell  i'.  Farmers',  &c. 

6G4 

Pantiiing  v.  Barrow 

226 

Pardee  v.  Van  Anken 

555 

Parpeter  r.  Harris 

216 

Parish  v.  Gilmanton 

151 

,244 

Parker  v.  Barker 

610 

,622 

V.  Green 

471 

V.  Kelly 

702 

V.  Lincoln 

16 

V.  Parker             294, 

458 

54  6 

Parkburst  v.  Alexander 

727 

Parkman  v.  Welch 

358 

367 

Parsons  v.  Freeman 

381 

V.  Mumford 

43 

V.  Welles  22,  28,  30 

272 

,514 

Parti njrton  v.  AVoodcock 

206 

Partridge  v.  Bere 

185 

V.  Partridge 

565 

Pascal  r.  Sauvinet 

11 

Pascon  V.  Paul 

517 

Patch  V.  King 

633 

Patchin  v.  Pierce 

57 

Patterson  v.  Edwards 

694 

V.  Esterling 

636 

r.  Yeaton 

85 

Pattison  v.  Horn 

26 

V  Hull 

241 

Patty  V.  Pease 

368 

Patton  V.  Page 

376 

Paulling  i\  Barron 

390 

Pawlett  V.  Attorney-General  282 

392, 

399, 

401 

Paxon  V.  Paul 

617 

Paxton  V.  Harrier 

367 

Payne  v.  Atterbury 

712 

Peabody  v.  Fenton 

583 

V.  Patten               11 

,  15 

308 

V.  Washington,  &c 

258 

Peake, 

673 

Pearce  v.  Savage 

616 

Pearsall  v.  Kingsland 

595, 

600 

Pearson  r.  Morgan 

639 

Pease  v.  Benson 

670 

Peck  V.  Mallams 

726 

Peet  V.  Beers 

695 

Pelby  V.  Wathen 

298 

Pell  V.  Uhnar 

77 

390 

Peltz  V.  Clarke 

554 

Penniinan  t^  Hnllis 

29, 

115 

Pennington  v.  Hanby 

74 

Penrliyn  v.  Hughes 

460 

People  V.  Miner 

530 

Perkins  v.  Dibble             39, 

151, 

518 

Drye 


85 


PASS 

Perkins  v.  Pitts  491 

Perry  v.  Brinton  491 

V.  Meddowcroft  97 

V.  Pearson  65 

Perry's,  &c.  3 

Peter  v.  Russell  642 

Peters  v.  Goodrich         485,  498,  719 

V  Florence  612 

r.  Jamestown,  &c  238 

Peterson  v.  Clark  230 

V.  Willing  60 

Pettat  V.  Ellis  508 

Pettee  i'.  Case  122,  156 

Pettengill  v.  Evans  463 

Pettibonev.  Stevens        340,469,612 

Phelps  V.  Rolfe  628,  547 

V.  Sage  516 

Pheton  V.  OIney  252 

Philbrook  v.  Delano  669,  671 

Phillips  V.  Bank,  &c.  562,  681 

V.  Hawkins  277 

r.  Sanderson  699 

V.  Thompson  362 

Phipps  V.  Budd  27 

Phoenix  v.  Clark  227 

Piatt  V.  Smith  86 

Pierce  v.  Brown  186,  280 

V.  Emery  6 

V.  Faunce  161 

V.  Potter  414 

V.  Taylor  718 

Pierson  v.  David  686 

Pike  V.  Armstead  729 

V.  Brown  362 

V.  Collins  719 

Pilkington  v.  Shaller  222 

Piiichain  v.  Coliard  697 

Pintard  v.  Goodloe         663,  668,  688 

Planters',  &c.  v.  Dodson  '       695 

Piatt  u.  Gilchrist  616 

V.  McClure  130 

V.  Smith  86 

V.  Squire  635 

Plowman  v.  Riddle  704 

Pockley  V.  Pockley  380 

Poignard  i'.  Smith  271 

Poiiidexter  r.  McCannon  95 

Polk  V.  Henderson  192 

Pollard  V.  Somerset,  &c.        160,  258 

Pollexfen  v.  Moore  672,  692 

Pumeroy  v.  Burnett  123 

V.  Lathing  333,  471 

Pomet  V.  Seranton  718 

Pomroy  i\  Rice  484 

Pond  ('.  Clarke  485 

Pool  V.  Hathaway  526 

Pope  V.  Biggs  200,  201 


INDEX   TO    CASES    CITED 


XXXV 


Pope  V,  Onslow 

PAGE 

304 

R. 

Porter  v.  Clements 

403 

PAOS 

V.  Green 

161 

Ragsdale  v.  Hagg 

678 

V.  King 

417 

Ralston  v.  Hughes 

165 

r.  Millet 

84 

Rand  v.  Cartwright 

396 

V.  Nelson 

99, 

114 

Randall  v.  Phillips 

276 

V.  Perkins 

490 

Randell  v.  Mallet 

123 

V.  Read 

396 

Randolph  w  Gwynne 

463 

V.  Seahor 

360 

Rands  v.  Kendall 

438 

V.  See  ley 

516 

Rangeley  v.  Spring 

19 

644 

V.  Smith 

294 

Kankert  v.  Clow 

5 

Portwood  r.  Outton 

727 

Rankin  v.  Mortimere 

107 

Post  V.  Arnot                   329 

516, 

629 

Ransone  v.  Frayser 

109 

V.  Dart 

601, 

604 

Ratlibone  v.  Clark 

372 

V.  Dorr 

477 

Raun  V.  Reynolds 

329 

V.  Tradesmen's,  &c. 

351 

535 

Ravenel  v.  Lyles 

558 

Potts  V.  Arnow 

629 

Rdwson  u.  Copeland 

362 

Pounds  V.  Gastman 

688 

V.  Eicke 

211 

Powell  V.  Williams 

413 

454 

Rayland  v.  The  Justices,  &c. 

236 

Powers  I'.  Russell 

624 

Raymond  v.  Raymond 

239 

Powsely  0.  Blackman     176, 

182, 

194 

Raynham  v.  Wilmarth 

436 

Poyntneil  v.  Spencer 

617 

Reading  r.  Weston 

64 

Pratt  V.  Bank,  &c,          241 

523 

541 

Receivers,  &c.  v.  Godwin 

17 

V.  Law 

608 

Reed  v.  Davis 

168 

V.  Sfholfield 

515, 

562 

u.  Lansdale 

66 

314 

V.  Thornton 

24 

V.  Marble 

728 

V.  V^an  Wyck 

677, 

679 

V.  Reed 

461, 

468 

Prescott  V.  Ellingwood 

163 

Reeves  v.  Scully 

574 

President,  &c.  v.  Chamberlin 

16 

Regan  v.  Walker 

714 

Preston  v.  Christinas 

389 

Reid  V.  Bank,  &c. 

228 

Prewett  v.  Dobbs 

66 

728 

Reilly  v.  Mayer 

358 

Price  V.  Bury 

649 

lleinbard  v.  Bank,  &c. 

351 

V.  Cutts 

660 

Keitenbaugh  v.  Ludwick 

36 

,37, 

V.  Evans 

91 

449 

Priel 

286 

Relfe  V.  Relfe 

708 

Prior  V.  White 

625 

Remsen  v.  Hay 

83 

Proctor  V.  Thrall 

526 

527 

Reun  V.  Ott 

7 

Proper! 's,  &c. 

27 

Repp  V.  Repp 

694 

Pryor  v.  Wood 

565 

568 

Rex  V.  Catherington 

164 

Pugh  V.  Holt 

153 

V.  Chailey 

164 

Purdie  v.  Millett 

78 

V.  Mattingly 

164 

Purefoy  v.  Purefoy 

304 

V.  Olney 

164 

Purser  v.  Anderson 

500 

V.  Tedford 

164 

Purvis  V.  Brown 

395 

Rhoades  v.  Canfield 

717 

Putnam  v.  Putnam 

391 

•             17.  Parker 

120, 

172 

Pynchon  v.  Laster 

445 

Rice  V.  Bird 

115 

V.  Rice 

83 

115 

V.  Tower 

161 

Q. 

Richards  v.  Bibb 

293 

V.  Chace 

4 

151 

Quarrel!  t;.  Beckford 

476 

V.  Holmes       128, 

142, 

294 

Quincy 

461 

V.  Tims 

512 

513 

Quincy  v.  Cheeseman 

476 

Richardson  v.  Boright 

636 

Quinebau<r,  &c.  v.  French 

316 

719 

V.  Brookline 

513 

Quinn  v.  Brittain 

462 

477 

V.  Baker 

677 

r.  Quincy 

461 

V.  Cambridge 

7 

,511 

XXXVl 


INDEX    TO    CASES    CITED. 


PAGE 

Richardson  v.  Field  603,  606 

t).  Hildreth  281,284 

Richmond,  &c.  v.  Woodruflf  509 


Rickard  v.  Talbird 
Riddle  r.  Bowman 
Rigden  r   Yallier 
Right  V.  Bueknell 
Rigney  c.  Lovejoy 
Ritchie  v.  Williams 
Ritger  v.  Parker 
Roach  I'.  Cosine 


517 

468 
276 
209 
243 

502 
21,  162,  238 

58 


Roarty  l:  Mitchell   11,  129,  130,  141 


Roath  V.  Smith 
Robbins  v.  Abrahams 

0.  Eaton 
Roberts  v.  ISozon 

I'.  Ilalstead 

V.  Robinson 

V.  Rose 

V.  Traders',  &c. 

Robertson  r.  Campbell 

V.  Paul 
Robinson 
Robinson 


V.  Collier 
V.  Cropsey 
V.  Farrelly 
V.  Guild 
V.  Leavitt 
V.  Preswick 
V.  Robinson 
V.  Sampson 
V.  Unjuhart 
Rochester  v.  Whitchouse 
Rockwell  i:.  Bradley 

V.  Hobby 
Roe  V.  Pogson 

t'.  Soley 
Rogan  i\  Walker 
Rogers  v.  Cross 

)i.  De  Forest 
V.  Grazcbrook 
V.  Humphreys 
V.  Mitciiell 
V.  Rogers 
V.  Traders',  &c. 
Rolleston  v.  Morton 
Rood  V.  \Vinslow 
Roon  V.  Murphv 
Root  V.  Banfrott    157,  165,  2 

V.  Stow 
Roper  I'.  IMcCook 
Roscarrii  k  v.  B  irton 
Roswell  c.  Simonton 
Ross  V.  Bank,  &c. 
V.  Haines 


616 

11 

645 

133 

250 

3 

692 

265,  266, 

270 

313,  587 

143,  403 

3 

621 

95,  106 

25,  100 

593 

502,  535 

461,  476 

174 

531 

486,  535 

489 

178, 190 

655,  714 

459 

304 

25,49 

629 

516 

169, 176 

.    204 

129 

5(i6 

486 

651 

607,  610 

697 


Ross  V.  Norvell 

V.  Utter 
Rossi  ter  v.  Cossit 
Rowan  v.  Adams 

V.  Sharps',  &c. 
Rowe  r.  Couch 
Rowland  v.  Day 
Kowntree  v.  Jacob 
Royce  v.  Burnell 
Ruby  I'.  Abyssinian,  &c 
Ruckman  v.  Astor 
Ruggles  I'.  Barton 
V.  W'illiams 

Runlet  r.  Otis 
Itunyan  v.  Mersereau 
Rus'/onibe  i\  Hare 
Russell  V.  Blake 

V.  Kenney 

V.  Piston 

V.  Russell 

17.  Southard 

V.  Todd 
Russell's  Appeal 
Ryall  V.  Rolie 
Ryan  v.  Shawneetown 


S. 


343 
347 
703 
31 
403 
729 
363 


PAGE 

66 

291 

437 

571 

8,  316 

413 

687 

676 

315 

167 

448,  453 

539 

65,  163,  236, 

240,  726 

61 

240 

14 

461 

363 

363,  548 

648 

82,98,100 

708 

70J 

657 

343 


Sage  V.  Phelps  516 

Salem  v.  Edgerly  359 

Salmon  v.  Clagett  227 

V.  Dean  564 

V.  Hoffman  697 

Saloway  v.  Strawbridge  143 

Sampson  v.  Pattison  29,  393 

V.  Williamson  138 

Sanders  v.  Reed  229 

V.  Richards  137 

Sandon  v.  Hooper  234 

S-inford  i\  Wheeler  323 

Satterthwaite  v.  Kennedy  168 
Saunders  i'.  Frost  55,  449,  450,  464, 
469,  472 

V.  Leslie  673 

Snuvemet  v.  Landreaux  725 

Savage  v.  Carter  505 

V.  Dooley  236 

Scales  V.  Maud  514 

Schanck  i'.  Arrowsmitb  699 

Schenck  (-•.  Ellingwood  623 

Schmidt  v.  Hayt  716 

Schnell  V.  Schnfedcr  503 

School,  &c.  V.  Wright  661 

Schoedcr  v.  Patterson  700 


INDEX  TO  CASES  CITED. 


XXXVll 


Schrymer  v.  Teller 

332, 

PAGE 

361 

Simers  v.  Saltus 

Scott  V.  Brest 

451, 

476 

Simonds  v.  Brown 

V.  Britton 

6£ 

),  99 

Simonton  v.  Gandolfo 

V.  Crawford 

677 

Sims  V.  Helling 

V.  Fields 

113 

Sinclair  v.  Armitage 

V.  Henry 

37, 

101 

Siter  V.  M'CIanachan 

V.  McFarland          34 

281, 

284 

Skaggs  V.  Nelson 

Seals  V.  Cashin 

393 

Skeel  V.  Spraker 

Sears  v.  Seahor 

21 

Skeffington  v.  Whitehurst 

V.  Smith 

675, 

697 

Skillman  v.  Teeple 

Second,  &c.  v.  Piatt 

130 

Skinner  v.  Cox 

Sehaor  v.  Robbins 

360 

V.  Miller 

Sell  V.  Miller 

10 

Slack  V.  M'Lagan 

Sellers  v.  Stalaye 

61 

Slaughter  v.  Detiney 

Sentill  V.  Robeson 

420 

V.  Foust 

Servis  v.  Beatty 

664, 

674 

Slee  V.  Manhattan  Co.     8 

Sessions  i'.  Bacon 

11 

Slocura  V.  Catlin 

Sevier  v.  Greenway 

71 

Smartle  v.  Williams 

Seymour  v.  Preston 

330 

Smith  V.  Blaisdell 

ShaefFer  v.  Chambers 

450, 

456 

V.  Bovin 

Shafto  V.  Shafto 

383 

V.  Cannell 

Shall  V.  Biscoe       683,  688 

697, 

705 

V.  Clark 

Shannon  v.  Bradstreet 

2?4 

V.  Columbian,  &c. 

V.  Marsellis 

360 

V.  Dyer 

Shapley  v.  Rangeley 

399, 

552 

V.  Empire,  &c. 

Sharp  V.  Kerns 

702 

V.  Gage 

Shaver  v.  Bear,  &c. 

608 

V.  Goodwin 

Shaw  V.  Erskine 

35 

V.  Jordon 

V.  Gray 

364 

V.  Kelley                 2 

r.  Hoadley 

401 

V.  Manning 

V.  Loud 

561 

V.  Mobile,  &c. 

Shay  V.  Patty 

700 

V.  Moore 

Sheckell  v.  Hopkins 

85 

V.  Otley 

Sheidle  v.  Weishlee 

14 

V.  People's,  &c. 

Shelby  v.  Perrin 

698 

V.  Pilkington 

Shelton  r.  Hampton 

520 

V.  Porter 

V.  Tiffin 

700 

i;  Prince 

Shepard  v.  Philbrick 

181 

V.  Province 

V.  Richards 

177 

V.  Shepard 

V.  Shepard 

317 

350 

V.  Smith                24 

Sheperd  v.  Adams 

360 

V.  Stanley 

Shepley  v.  Rangeley 

583 

626 

V.  Taylor 

Sherman  v.  Abbot 

514 

523 

V.  Vincent 

V.  Gassett 

589 

Snow  V.  Stevens 

V.  Sherman 

480 

511 

Snyder  v.  Snyder 

Sherwood  v.  Dunbar 

481 

Soar  V.  Dalbey 

V.  Elslow 

511 

Sober  v.  Kemp 

Shirley  v.  Shirley 

113 

Solms  V.  M'Culloch 

V.  Sugar,  &c. 

669 

Solomon  v.  Sparks 

Shirras  v.  Caig 

323 

V.  Wilson 

Shitz  V.  DieflTenbach 

657 

Somers  v.  Barrett 

Shiveley  v.  Jones 

624 

Somersworth  v.  Roberts 

Shute  '•.  Grimes 

170 

Souders  v.  Van  Sickle 

Shuttleworth  v.  Laycock 

304 

Southerin  v.  Mendum 

Silver,  &c.  v.  North 

330 

Spader  v.  Lawler 

Silvester  v.  Jarman  36,  286,  287 

,390 

Sparhawk  v.  Mills 

VOL.  I. 

d 

21, 


PAOS 

207 
336 
526 
654 

7 

308 

666,  696 

362,  371 

395 

324,  344 

24,  728 

600 

677 

3,  9 

251 

148,  560 

535 

176 

28 

129 

126 

574 

256 

169,  283 

258,  259 

671,  713 

229 

727 

246,403 

401 

721,  729 

156,  230 

390,  516 

115 

215 

167 

485 

10,  141 

203 

332,  511 

3,  483 

167,  199 

515 

421 

520 

474 

342 

719 

621 

93 

61 

4 

204 

247 

318 

467 


XXXVUl 


INDEX   TO   CASES    CITED. 


Sparkes  r.  Smith  222 

Sparks  r.  State  Rank  719 

Speakman  v.  Spi-akman  23,  158 

Spt-er  V.  Whitfield  31 H,  522 
Spencer  v.  Avrault         520,  535,  611 

Spofford  I'.  H'obbs  643 

Sprapue  v.  Graham  623 

Sprifig  V.  Lyles  343,  729 

Spring  r.  Haines  68,  403 

r.  Hill  482 

Springer  v.  Walters  664,  676 

Spurgeon  r.  Collier  73 
St.  Andrews,  &c.  i-.  Tompkins      327 

St.  John  V.  Bumpstead  361 

V.  Turner  78 

Stabback  r.  Lcat  131 

Stafford  v.  Ballou  637 

I'.  Van  Rensselaer  684 
Stamford,  &c.  r.  Benedict      341,  509 

Stam|)er  i'.  Johnson  66 

Stanley  v.  Beatly  251 

Stanse'll  v.  Roberts  696,  728 

Stapp  V.  Phelps  605 

Stark  V.  Boswell  529 

State  r.  Laval  23,  30 
State,  &c.  I'.  Campbell  335,  344,  658 

V.  Tweedy  251 
Stedman  v.  Cassett         192,  194,  200 

Steedman  v.  Poole  723 

Steel  r.  Black  62 

Steele  v.  Adams  510,  621 

Stehley  i;.  Irvin  612 

Stelle  I-.  Carroll  425 

Stiiinnons  v.  Duncan  356 

Stef>hens,  &c.  664 

Stephens  r.  Barrett  729 

V.  Sherrod  116 

Stephenson  v.  Thompson  42 

Stets^on  t>.  Gulliver  44 

Stevens  v.  Brown  167 

V.  Cooper  57,  664 

Stevenson  r.  Black  241,  362 

Stewart  i'.  Anderson  554 

V.  Hutchins  24 

V.  Ives  671,  683 

V.  Preston  237,  354 

Still  V.  (Jriffin  682 

Stockard  v.  Stockard  351 

St<xkett  V.  Taylor  714 

Sto<kiMg  V.  Fairchild  39 

Stockton  V.  Johnson  252 

Stocver  v.  Stoever  113 

Stokes  V.  Russell  216 

Stone  ('.  Evans  221,  223 

Sloney  i'.  American,  &c.  591 

I!.  M'Murray  100 


PAGE 

Stoney  v.  Shultz 

150 

,466 

Story  V.  Johnson 

645 

Stover  V.  Bounds 

67 

V.  Harrington 

351 

354, 

521, 
622 

Stowell  r.  Pike 

228 

Strachn  v.  Foss 

486 

Stratton  v.  Sabin 

26 

Streator  r.  Jones 

100 

Strong  r.  Blanchard 

355 

460, 

462, 
472 

r.  Manufacturers',  &c. 

257 

t'.  Stewart 

57 

V.  Strickland 

163 

Stronge  v.  Hawkes 

631 

Stroud  V.  Casey 

359 

Stuart  V.  Abbott 

694 

V.  Kissara 

532 

Stuyvesant  v.  Ilall 

324 

368 

Sumner  v.  Barnard 

126 

Sumpter  v.  Cooper 

658 

Swabey  v.  Swabey 

536 

Swaine  r.  Perine 

441 

Swan  V.  Patterson 

349 

Swarthout  v.  Curtis 

721 

Sweet  r.  Van  Wyck 

58, 

560 

Sweetman  v.  Ambler 

2 

122 

Swett  V.  Horn 

21 

Swift  V.  Kroemer 

545 

V.  Vermont,  &c. 

255 

Symons  v.  James 

377 

380, 

388 

Syracuse,  &c.  v.  Tallman 

153, 

167, 

210, 

475 

Tabele  v.  Tabele 
Taggart  v.  Thompson 
Tallman  v.  Ely 
Tanner  v.  W^ells 
Tardiffe  v.  Schrugan 
Tasburgh  i'.  Ecklin 
Taylor  v.  Adams 
V.  Alloway 
V.  Baker 
V.  Baldwin 
V.  Chowning 
V.  Cole 
V.  Foote 
V.  Hunter 
V.  Luther 
V.  Maris 
;.  Thomas 
V.  Townsend 
V.  Weld 


427 

159 

515 

311 

672 

80 

699 

678 

723 

60,  691 

129 

629 

705 

683 

64,  65 

329 

722,  727 

463 

86,37,  167 


INDEX   TO    CASES    CITED. 


XXXIX 


PAQB 

TeafF  v.  Ross 

500 

Teed  v.  Carruthers 

488 

Teeter  v.  Pierce 

355 

Ten  Eyck  v.  Holmes 

353 

Tennent  v.  Dewees 

451 

Tenney  v.  Blanchard 

84 

Terry  v.  George 

702 

V.  Woods 

253,451 

Teulon  v.  Curtis 

5 

Tharp  v.  Feltz                 295, 

451,505 

Thatcher  v.  Gammon 

603 

Thayer  v.  Campbell 

237 

V.  Cramer 

150 

V.  Mann 

*       5 

V.  Richards 

121,444 

Thomas,  &c. 

481 

Thomas  v.  Olney 

293 

V.  Van  Kapff 

258, 2C8 

Thomaston  v.  Stimpson 

50 

Thomes  v.  Cleaves 

587 

Thompson  v.  Boyd 

424,  425 

V.  Chandler 

339 

V.  Diffendufer 

475 

V.  Drake 

622 

V.  McGill 

701 

V.  Mack            44,  78,  729 

V.  Patton 

66 

V.  Williams 

703 

Thornbrough  v.  Baker 

237,  282 

Thorne  v.  Thorne 

159 

Thorneycroft  v.  Crockett 

464 

Thornton  v.  Knox          685 

,  697,  700 

V.  Pigg 

407 

V.  Wood 

279 

Thredgill  v.  Pintard 

683 

Thunder  v.  Belcher 

192,  196 

Thurston  v.  Kennett 

284 

Tibeau  v.  Tibeau 

54 

Tice  V.  Annin 

410,411 

Tichenor  v.  Dodd 

362 

Tichout  V.  Harmon 

546 

Tiernan  v.  Beam 

675,  703 

V.  Hinman 

87 

r.  Poor 

11 

V.  Shurman 

684 

V.  Thurman 

700 

Tifft  V.  Walker 

44 

Tillinghast  v.  Fry 

404,  441 

Tilford  V.  James 

352 

Tillon  V.  Kingston,  &c. 

266,  267 

V.  Merchants',  &c. 

255 

Tillotson  V.  Boyd 

117 

Titley  v.  Davis 

304 

Titus  V.  Neilson 

421,427 

Toby  V.  Read 

181 

Todd  V.  Campbell 

53,61 

PAOE 

Toft  V.  Stephenson  685 

Tohler  v.  Folsom  656 

Tooms  V.  Chandler  122 

Torrey  v.  Bank,  &c.  316 

Towers  v.  Tuscaloosa,  &c.  415 

Towle  V.  Hoyt  403 

Towler  v.  Buchanans  501 

Townsend  v.  Ward  362 

Traders',  &c.  v.  Robert  263,  265,  267 

Trenchard  v.  AVarner  331 

Trenton,  &c.  v.  Woodruff  478,  581 

Trimble  v.  Reis  10 

Tripp  V.  Vincent  375,  482 

Troth  V.  Hunt  338 

Trotter  v.  Erwin  674 

Troughton  v.  Binkes  398 

Truebody  v.  Jacobson  697,  700 

Truesdell  v.  Callaway  695 

Trull  V.  Skinner  83 

Trulock  V.  Robey  401,  450 

Truscott  V.  King  324,  718 

Trustees,  &c.  v.  Dickson  157 

Try  on  v.  Sutton  608 

Tucker  v.  Keeler  180 

V.  Thurston  392 

Tull  V.  Owen  75 

Turner  v.  Bouchell  139 

r.  Camerons,  &c.  207 

Turnipseed  v.  Cunningham  101 

Tu thill  V.  Dubois  716 

Tylee  v.  Webb  652 

Tyler  ?;.  ^Etna,  &c.  676 

V.  Lake  543 

V.  Taylor  276,  556 

Tyson  v.  Rickard  540 


u. 

Uhler  V.  Hutchinson  718 

Underwood  v.  Courtown  718 

Union,  &c.  v.  Emerson  463 

Union  Bank,  &c.  v.  Edwards         325 
r.  Stafford  483 

Upham  V.  Brooks  123,  396,  514 

Upshaw  V.  Hargrove  690 

U.  States  V.  Hodge  347 

V.  Hooe  316,  317 

Utley  V.  Smith  316,  323 

Uzzell  V.  Mack  700 


Vail  V.  Foster 
Vallance  v.  Savage 


697 
204 


xl 


INDEX    TO    CASES   CITED. 


PAGE 

Valle  i;.  American,  &c.  527 

V.  Iron,  &c.  531 

Van  Bergen  v.  Demarest  130 

Van  Buren  v.  Olmstead  58 

Van  De  GraafFv.  Medlock  257 

Vanderkemp  v.  Shelton  543,  581 

Van  Deusen  v.  Frink  186 

Van  Doren  v.  Todd  669,  699 
Van  Duyne  v.  Thayer  238,  280,  428 

Van  Hook  v.  Somervllle  53  7 

Van  Meter  v.  M'Faddin  657 

Van  Ness  v.  Hyatt  407 

Van  Pelt  v.  M'Graw  230 

Van  Rensselaer  v.  Akin  499 

V.  Stafford  328,  329, 

684 

Van  Riper  v.  Williams  613 

Van  Vronker  v.  Eastman  440,  443 

Van  Waggenen  v.  Brown  535 

V.  Hopper  724 

Van  Waggoner  v.  IM'Ewen  613 
Van  Wagner  v.  Van  Wagner  35,  316 

Van  Wyck  v.  Alliger  226 

Vanneter  v.  Vanneter  318 

Vasser  v.  Vasser  66 

Veach  v.  Schaup  469,  629 

Verner  v.  Winstanley  105,  401 

Vernon  t'.  Bethell  68,  78 

V.  Smith  255,  268 

Viles  V.  Morlton  558 

Viscount,  &c.  V.  Morris  389,  398, 

480 

Voorhies  v.  De  Blanc  7 

Vose  V.  Handy  246 


w. 


Waddle  i'.  Cureton 

504 

Wade  V.  Coope 

348 

V.  Howard 

518 

555 

Wade's  case 

6 

Wadsworth  v.  Loranger 

66 

Wager  v.  Chew 

365 

Wagham  v.  Coomes 

697 

Wakeman  v.  Banks 

191 

Walcop  V.  M'Kinney 

167 

Walden  v.  Cabot 

164 

Waldren  v.  Sloper 

714 

Wales  V.  Mellen              167 

170 

173 

Walker  v.  Baxter 

537 

V.  Paine 

291 

V,  Reeves 

223 

V.  Sedgwick      663, 

664, 

677, 
697 

V.  Walker 

54 

Walker  v.  Williams 
Wall  V.  Boisgerard 
Wallace  v.  Blair 
Waller  i:  Tate 
V.  Todd 
Walling  V.  Aikin 

V.  Cody 
Wallis  V.  Long 
Walthall  V.  Rines 
Walton  V.  Cronly 

V.  Withmgton 
Warburton  v.  Lanman 

V.  Mattox 
Ward  V.  Sharp 
Warden  v.  Adams 
Ware  v.  Bennett 
Waring  v.  Smith 

V.  Ward 
Warne  v.  Hall 
Warner  v.  Everett 


PAGE 

705 

296 

535,537 

252,  418 

612 

68,  73,  314 

2,  129 

525 

329 

57,58 

451 

337 

638 

596 

242 

512 

236 

385 

196 

■    396 


V.  Gouverneur  475,  476,068, 

592 

Warren  v.  Fenn    661,  662,  666,  667, 

676 

y.  Hamstead  517,562 

V.  Warren  537 

Washburn  v.  Goodwin  419 

V.  Titus  68 

Waterman  v.  Curtis  451,  604 

V.  Matteson  228 

Waters  v.  Randall  69,  84 

I'.  Wynn  36 

Watkins  v.  Gregory  34 

V.  Stockett  66 

Watson  V.  Bane  330,  712 

V.  Dickens  66,  315 

V.  Wells  672 

t;.  Willard  701 

Watts  V.  Coffin  203 

V.  Svmes  298 

Waugh  V.  Riley        10,  509,  520,  524 

Way'v.  Patty  683 

Wease  v.  Pierce  610 

Weaver  v.  Toogood  366 

Webb  V.  Flanders  518 

V.  Patterson  38 

V.  Rice  60 

V.  Robinson  683,  691,  705 

V.  Rork  80 

V.  Russell  216 

Webber  v.  Webber  287 

Wedge  V.  Moore  436 

V.  Russell  105 

Weed  V.  Beebe  6  71-,  674 

V.  Covin  114 

V.  Lyon  715 


INDEX   TO   CASES   CITED. 


xH 


Weed  V.  Stevenson 
Weeks  i'.  Eaton 
Weidner  v.  Foster 
Welch  V.  Adams 
Weld  V.  Sabin 
Welford  v.  Beezely 
Wellborn  v.  Williams 
Wells  i\  Morse 
Wendell  v.  N.  H.  Bank 
Wentz  V.  Dehaven 
West  V.  Reid 

V.  Thornburgh 
West,  &c.  V.  Chester 
Westerdell  v.  Dale 
Western,  &c.  v.  Eagle 
Westervelt  r.  HafF 
Wetherington  v.  Banks 
Wharf  V.  Howell 
Wheeler  v.  Bates 

V.  Branscomb 
V.  Montefiore 
Wheelwright  v.  Loomer 
Whitaker  v.  Harrold 
Whitbread 
Whitbread  v.  Smith 
V.  Jordan 
Whitcomb  v.  Sutherland 
White  V.  Brown  256, 

V.  Casanane 

V.  Dougherty 

V.  Hillacre 

V.  Knapp 

V.  Parnther 

V.  Stover 

V.  Vallette 

V.  Whitney 
Whiting  V.  Beebe 
Whitney  v.  Buckman 
V.  French 
I'.  M'Kinney 
Whitworth  v.  Gaugain 
Whittaker  v.  Dick 
Whittemore  v.  Gibbs 
Whittick  V.  Kane 
Wickenden  v.  Rayson 
Whittrick  v.  Cane 
Wickersham  v.  Reeves 
WikofF  V.  Davis 
Wilbur  V.  Bowditch,  &c. 
Wilcox  V.  Morris 
Wilder  v.  Houghton 
V.  Smith 
V.  Whittemore 
Wildey  v.  Collier 
Wilkins  v.  French 

r.  Humphreys 


PAGE 

23,  38 

Wilkinson  v.  Flowers 

245 

V.  Hall 

199 

V.  Russell 

192 

202 

V.  Watts 

335 

537 

Willett  V.  Winnell 

632 

Williams  v.  Ayrault 

703 

V.  Birbeck 

402 

535 

V.  Bosanquet 

43 

V.  Bishop 

512 

V.  Hilton 

723 

V.  Kelsey 

681 

V.  Kimball 

503 

V.  Owen 

221 

223 

V.  Roberts 

340 

V.  Sorrell 

18 

V.  Starr 

233 

V.  Stratton 

60, 

113 

V.  Thorn 

192 

V.  Thurlow 

203 

V.  Watts 

176 

V.  Woods 

371 

Williamson  v.  Downs 

216 

V.  Ross 

649, 

659 

Wilson 

11 

Wilson  V.  Geisler 

723 

V.  Hardesty 

49, 

447 

V.  Hay  ward 

469 

471 

V.  Hooper 

682, 

688 

V.  Kimball 

697 

V.  Ring 

306 

V.  Shoenberger 

674 

V.  Soper 

398 

V.  Troup 

703 

V.  Watts 

2 

Winborn  v.  Gorrell 

153 

Wing  V.  M'Dowell 

316 

Winn  V.  Ham 

7 

608 

Winslow  V.  M'Call 

39, 

236 

V.  Merchants' 

568 

Winter  v.  Anson 

653 

V.  Garrard 

486 

V.  Rose 

244 

Wires  v.  Nelson 

57 

Wiseman  v.  Reid 

144 

Witherell  v.  Hull 

50 

Withers  v.  Morrell 

535 

545 

Wofford  V.  Thompson 

360 

Wolbert  v.  Lucas 

260 

Wolcott  V.  SuHivan 

67 

116 

Wolfe  V.  Dowell 

186 

Wolstan  V.  Aston 

703 

Womble  v.  Battle 

173 

Wood  V.  Colvin 

607 

V.  Felton 

28 

275 

V.  Jones 

704 

c.  Lester 

PAGE 

519 

175,  176 

320 

129,619,620 

78 

619 

581 

221,  224 

100,470 
276,  293,  470 
624 
532 
298,  343,  348 
697 
534 
482 
675 
366 

505,519 
129 
689 

316,  324 
707 

153,  183 
3 
596 
254 
192 
625 
515 
37 
537 

129,  538 
129 
671 
727 
550 
537 
,  &c.  180 
673 
505 
710 

185,  186 

463,  679 

165 

615 

528 

123 

568,  576,  728 

616 

76 

666,  669,  671 

143 

454 

393 

666,  668 


xlii 


INDEX   TO   CASES   CITED. 


PAGE 

Wood  V.  Trask  151,  251 

Woodard  v.  Fitzpatrick  593 

Woodbury  v.  Aikin  525 

Wooden  v.  Haviland  617,  618 

Woodruff  V.  Robb  40 

Woods  V.  Bailey  705 

V.  Burrough  662 

V.  Huntingford  384 

V.  Wallace  2,  100,  445 

Woodson  V.  Perkins  314 

Woodward  v.  Phillips  462,  467 

V.  Pickett  23,  186,  228 

Woodward's,  &c.  362 

Wood  worth  v.  Guzffi  25,  719 

Woollen  V.  Hillen  360 

Work  I'.  Bray  ton  161,666 

V.  Harper  719 

Worster  r.  Great  Falls,  &c.          158 

Worthington  v.  Morgan  369 

Wortley  i'.  Birkhead  298 

Wragg  V.  Comptroller,  &c.  671 

Wright  V.  Atkinson  688,  710 

V.  Bates  89,  90 

V.  Lake  151,  229 

V.  Rose  137,  375 

V.  Tukey  157 

Wrixon  v.  Cotter  80 

Wyatt's  case  20 

Wyatt  V.  Stewart  718 


Wyckoff  V.  Remsen 
Wyman  v.  Babcock 
V.  Hooper 
Wynkoop  v.  Cowing 


PAGE 

716 

647 

539,  548 

77,  103 


Yancy  v.  Mauck 

664,  671 

Yarborough  v.  Newell 

65 

Yates  V.  Ashton 

109 

Yelverton  v.  Shelden 

353 

Youle  V.  Richards 

67,83 

Young  V.  Eagle,  &c. 

161 

V.  English 

298 

V.  Roberts 

129 

V.  Tarbell 

3 

r.  Miller 

236,  242,  272 

V.  Wood 

700 

Youngs  V.  Wilson 

323 

z. 


Zane  v.  Dickerson  65 

Zeiter  v.  Bowman  199 

Zekind  v.  Newkirk  67,  236 

Zentmyer  v.  Mittower  670 


THE  LAW  OF  MORTGAGES. 


THE  LAW  OF  MORTGAGES. 


CHAPTER  I. 


1.  Definition  of  a  mortgage ;  mort- 
gage for  the  purchase-money.  Dis- 
tinction between  a  mortgage  and  the 
vivuni  vadium,  &c. 

4.  What  may  be  mortgaged. 

5.  Parties  to  a  mortgage  :  Aliens  ; 
married  women ;  infants ;  joint  ten- 
ants, &c. 

27.  Early  construction  of  the  con- 


dition of  a  mortgage  ;   performance, 
tender,  &c. 

36.  Form  of  expressing  the   condi- 
tion ;  stipulation  for  reconveyance,  &c. 

38.  Mortgages  for  j'ears ;  mortgages 
of  leaseholds. 

39.  Jurisdiction  of  Courts  of  Equity 
over  mortgages. 

43.  Equity  of  redemption. 


1.  Various  definitions  of  a  mortgage  have  been  given  by 
different  judges  and  elementary  writers,  some  of  which, 
although  presenting  a  correct  general  view  of  the  subject, 
cannot  be  considered  as  precisely  accurate.  Thus,  a  mort- 
gage has  been  defined  to  be  a  security  for  repayment  of 
money,  or  a  conveyance  of  lands  by  a  debtor  to  his  creditor, 
as  a  pledge  or  security  for  the  repayment  of  a  sum  of  money 
borroived ;  with  a  proviso,  that  such  conveyance  shall  be 
void  on  payment  of  the  money  borrowed,  with  interest,  on  a 
certain  day.^  [a)     It  is  quite  obvious,  however,  that  the  ele- 

1  Com.  Dig.  Mortgage  A  ;  2  Greenl.  Cruise,  79.  See  also  Jac.  Law  Diet. 
Mortgage ;  2  Black.  Com.  157  ;  Elfe  v.  Cole,  26  Geo.  197. 


(a)  "  A  mortgage  is  a  contract."  Per  Woodward,  J.  Ashhurst  v.  The 
Montour,  &c.,  35  Penn.  43  ;  3  Humph.  464.  "  A  mortgage  is  always  founded 
on&loan."  Chapman  v.  Turner,  1  Call,  252.  Mr.  Coote  says,  (Coote,  139.) 
"  A  mortgage  is  a  debt  by  specialty,  secured  by  a  pledge  of  lands,  of  which 
the  legal  ownership  is  vested  in  the  creditor,  but  of  which,  in  equity,  the 

VOL.    I.  1 


2  THE   LAW    OF   MORTGAGES.  [CH.   I. 

raent  of  borrowed  moiiey,  as  necessary  to  constitute  a  mort- 
gage, is  wholly  fanciful.  This  definition,  if  strictly  accurate, 
would  exclude  that  large  class  of  mortgages,  perhaps  larger 
than  any  other  whatever,  where  land  is  sold  and  conveyed 
by  one  person  to  another,  and  the  latter  at  the  same  time 
mortgages  it  back  to  secure  payment  of  the  whole  or  a  part 
of  the  purchase-money,  {h) 


debtor  and  those  claiming  under  him  remain  the  actual  owners,  until  debarred 
by  judicial  sentence,  by  legislative  enactment,  or  their  own  laches."  See 
Loyd  V.  Currin,  3  Humph.  464.  At  common  law,  a  mortgage  must  be  by 
deed.  Hebron  v.  Centre,  &c.  11  N.  H.  571.  Contra,  Woods  v.  Wallace,  22 
Penn.  171.  An  unsealed  instrument  intended  for  a  mortgage  is  at  most  a 
mere  contract,  gives  no  lien  as  against  a  subsequent  assignment  with  no- 
tice for  the  benefit  of  creditors,  and  will  be  set  aside  on  petition  as  a  cloud 
upon  the  title.  Erwin  v.  Shuey,  8  Ohio,  N.  S.  509.  See  Bloom  v.  Noggle, 
4  Ohio  St.  45.  It  is  held  that  the  word  mortgage  is  a  technical  term,  and  to 
be  technically  construed.  Walton  v.  Cody,  1  Wis.  420.  As  to  the  stamping 
of  a  mortgage,  see  Morgan  v.  Pike,  25  Eng.  L.  &  Eq.  281 ;  Sweetman  v. 
Ambler,  8  Exch.  72.  Equity  treats  as  a  mortgage  the  bonds  of  a  cor- 
poration, which  pledge  its  property  for  a  debt.  White,  &c.  v.  Vallette, 
21  How.  (U.  S.)  414.  A  corporation,  holding  land  under  a  bond  for  title 
upon  payment  of  the  purchase-money,  agreed  that  th^s^  interest  should  be 
mortgaged  to  certain  members,  as  security  for  their  liability  on  its  account, 
which  agreement  was  entered  in  the  minutes  of  the  corporation,  and  a  deed 
of  trust  made  accordingly.  Held,  the  deed  was  valid  in  equity,  related  to 
the  original  resolution,  and  should  have  priority  of  the  lien  of  an  intervening 
judgment  creditor  with  notice.  Miller  v.  Moore,  3  Jones,  Eq.  431.  See 
ch.  23,  s.  1,  n. 

(U)  In  some  respects,  by  statutory  provisions,  this  class  of  mortgages  is 
placed  on  a  different  footing  from  any  other.  Thus  in  Indiana,  Arkansas, 
and  Wisconsin,  by  statute,  the  widow  of  the  mortgagor  has  no  dower.  Ark. 
L.  44,  45,  46  ;  Wis.  Rev.  Sts.  333  ;  Ind.  Rev.  Sts.  (But  see  Nottingham  v. 
Calvert,  1  Cart.  527,  that  in  Indiana  she  has  dower  in  ecpity.)  Indepen- 
dently of  statute,  the  above  is  the  prevailing  rule  of  law,  the  husband  in  such 
case  having  only  an  instantaneous  seisin,  from  which  the  right  of  dower  does 
not  arise.  The  rule  is  held  to  applj'  to  the  mortgage  of  other  lands  than 
those  conveyed  to  the  mortgagor  by  the  mortgagee.  Thus  A.  conveyed  to  B., 
the  plaintiff's  husband,  on  the  2d  of  June,  1821,  certain  lands  in  Lancaster. 
On  the  9th  of  June,  C.  conveyed  to  B.  lands  in  Greenland,  and  B.  im- 
mediately mortgaged  them  to  A.,  to   secure  the  purchase-money  of  the 


CH.    I.]  THE   LAW   OF   MORTGAGES.  3 

2.  A  more  correct  definition  of  a  mortgage,  therefore, 
would  seem  to  be,  the  conveyance  of  an  estate  by  way  of 

lands  in  Lancaster.  Held,  that  B.  bad  only  an  instantaneous  seisin  of  the 
land  In  Greenland,  and  his  widow  was  not  entitled  to  dower  against  A.,  with- 
out contributing  her  proportion  of  the  mortgage  debt  for  the  land  in  Lan- 
caster. Adams  v.  Hill,  9  Fost.  202.  It  must  be  proved  that  the  mortgage 
and  deed  constituted  but  one  transaction.  Grant  v.  Dodge,  43  Maine,  489. 
Dower  attaches  as  against  all  but  the  mortgagee  and  his  assignees.  Young  v. 
Tarbell,  37  Maine,  509.  If  subsequently  the  money  be  paid  or  the  mortgage 
released,  the  seisin  takes  effect  by  relation  from  the  time  of  the  conveyance. 
Smith  V.  Stanley,  37  Maine,  11.  It  is  held,  that,  where  property  has  been 
sold  and  mortgaged  back  to  secure  the  purchase-money,  the  wife,  having 
dower  in  the  equity  of  redemption,  must  be  made  party  to  the  foreclos- 
ure of  the  mortgage,  as  must  also  the  wives  of  the  mortgagor's  grantees. 
Mills  V.  Van  Voorhies,  20  N.  Y.  (6  Smith,)  412.  The  grantees  of  a  mort- 
gagor, who  has  mortgaged  the  premises  to  secure  the  purchase-money,  and 
sells  portions  of  them,  subject  to  the  mortgage,  are  seised  of  the  equity  of 
redemption  in  these  portions,  and  their  wives  are  respectively  entitled  to 
dower  subject  to  the  mortgage ;  and,  if  they  survive  their  husbands,  they 
can  by  redeeming  the  mortgage  claim  and  receive  dower.  Mills  u.  Van 
Voorhies,  23  Barb.  125. 

"  Where  a  mortgage  is  made  simultaneously  with  the  purchase  of  land, 
and  as  a  part  of  the  same  transaction,  no  intervening  right  of  homestead  is 
created  in  the  mortgagee."  Per  Hoar,  J.  New  England,  &c.  v.  Merriam, 
2  Allen,  391.  If  one  lends  money  to  pay  off  a  mortgage  on  which  a  fore- 
closure sale  is  about  to  take  place,  and  immediately  takes  a  mortgage  to 
secure  his  loan,  the  two  transactions  are  contemporaneous,  and  a  homestead 
right  which  attached  after,  and  therefore  subject  to  the  first  mortgage,  is 
also  subject  to  the  second.     Carr  v.  Caldwell,  10  Cal.  380. 

In  New  Jersey  and  Delaware,  (if  recorded  in  sixty  days,)  a  mortgage  for 
the  purchase-money  is  made  valid  against  judgment  creditors  of  the  mort- 
gagor. N.  J.  Rev.  St.  644  ;  Dela.  Rev.  Sts.  269.  In  regard  to  the  time  of 
redeinpdon,  a  mortgage  for  the  purchase-money  does  not  differ  from  others. 
Robinson,  3  Ohio,  N.  S.  551.  Though  a  very  strict  foreclosure  Is  sometimes 
enforced,  where  the  whole  of  it  is  unpaid.  Wilson  v.  Gelsler,  19  111.  49. 
See  Howard  v.  Davis,  6  Tex.  1 74  ;  Dillon  v.  Byrne,  5  Cal.  455  ;  Dutton 
V.  Ives,  5  Mich.  515;  Slaughter  v.  Detlney,  10  Ind.  103;  Larimer's,  &c., 
22  Penn.  40;  Perry's,  &c.,  lb.  43  ;  Clark  v.  Brown,  3  Allen,  509  ;  ch.  13, 
s.  1  ;  Cake's,  &c.,  23  Penn.  186  ;  Alderson  v.  Ames,  6  Md.  52;  Deakyne 
V.  Love,  5  Harring.  354.  In  Illinois,  a  mortgage  for  the  purchase-money, 
executed  at  the  same  time  with  the  deed,  whether  made  to  the  vendor  or 
to  one   who  advances  the  money  which  Is  paid  to  the  vendor,  has   pri- 


4  THE   LAW   OF   MORTGAGES.  [CH.   I. 

pledge  for  the  security  of  debt,  and  to  become  void  on  pay- 
ment of  it.^  Or,  a  conditional  conveyance  of  land,  designed 
as  security  for  the  payment  of  money,  the  fulfilment  of  some 
contract,  or  performance  of  some  other  act,  and  to  be  void 
upon  such  payment  or  performance.^  Or,  an  absolute  pledge, 
to  become  an  absolute  interest,  if  not  redeemed  at  a  certain 
time.^  Or,  "  a  security  for  the  payment  of  money,  or  the 
performance    of  some    prescribed   act."  *  (c)     Or,  an   estate 

^  4  Kent,  183.  construction   of  whicli    statute,   how- 

2  1  Hill,  on  R.  P.  371  ;  Montgomery  ever,  see  40  N.  H.  39-40).     See  also 

V.  Bruere,  1  South.  268 ;  Eicliards  v.  Alderson  v.  White,  4  Jur.  N.  S.  164. 

Chace,  2  Gray,  385 ;  per  Appleton,  J.  ^  1  Povv.  7. 

Mitchell  I'.  Burnhara,  44  Maine,  299  ;  *  Per  Merrick,  J.     Steel  v.  Steel,  4 

Somersworth  v.  Roberts,  38  N.  H.  24 ;  Allen,  419,  420. 

N.  H,  Rev.  Sts.  eh.  131,  s.  1,  (for  a 

ority  of  a  judgment  against  the  mortgagor.  Curtis  v.  Root,  20  III.  53.  A. 
entered  into  a  verbal  contract  with  B.  and  C,  to  sell  them  a  lot  of  land. 
They  took  possession,  and  employed  D.  to  erect  a  building.  After  he  had 
commenced  work,  B.  and  C.  received  from  A.  a  deed,  and  at  the  same  time 
executed  a  mortgage  to  him  to  secure  the  purchase-money.  Held,  the  mort- 
gage and  conveyance,  being  simultaneous,  were  in  law  one  act,  and  A.'s  lien 
was  prior  to  D.'s.     Guj'  v.  Carriere,  5  Cal.  511. 

(c)  The  title  of  a  mortgagee  is  said  to  be  not  a  mere  lien,  depending  on 
possession,  but  a  real  interest,  though  conditional.  Barnard  v.  Eaton,  2 
Cush.  304.  It  is  a  lien,  and  something  more ;  a  transfer  of  the  property 
itself,  as  security  both  in  equity  and  law.  It  is  a  trust  estate.  When  the 
debt  is  discharged,  there  is  a  resulting  trust  for  the  mortgagor.  A  mortgage 
is  called  a  lien,  only  in  a  loose  and  general  sense,  in  contrast  with  an  absolute 
and  indefeasible  estate.  Opinion  of  the  U.  S.  Sup.  Ct.,  cited  in  Evans  v.  Mer- 
riken,  8  Gill  &  J.  47 ;  Conard  v.  The  Atlantic,  &c.,  1  Pet.  441.  The  matter 
must  be  the  subject  of  stipulation  and  agreement  between  the  parties.  3 
Humph.  (Tenn.)  464  ;  35  Penn.  43. 

From  these  definitions  in  the  text,  it  may  be  seen,  how  a  mortffage  or  dead 
pledge  differs  from  another  form  of  security  formerly  in  use,  termed  vadium 
vivum;  or  living  pledge.  This  contract  or  conveyance  has  become  nearly 
obsolete,  and  therefore  requires  only  a  brief  notice.  The  vadium  vivum  was 
where  a  man  borrowed  a  certain  sum  of  another,  and  made  over  an  estate 
of  lands  to  him,  until  he  had  received  that  sum  out  of  tlie  issues  and  profits 
thereof;  and  was  so  called,  because  neither  the  money  nor  the  lands  were 
lost ;  for  the  latter  were  constantly  paying  off  the  former,  and  were  not  left 
as  a  dead  pledge,  in  case  the  money  was  not  paid.  1  Pow.  3 ;  Coote,  43. 
The  vivum  vadium  seems  to  be  sometimes  substituted  in  place  of  an  original 


CH.  I.]  THE   LAW    OF   MORTGAGES.  5 

upon  a  condition,  defeasible  by  the  performance  of  the  con- 
dition according  to  its  legal  effect.^ 

1  Erskine  v.  Townsend,  2  Mass.  495. 


mortgage.  Thus,  in  a  foreclosure  suit,  the  defendant  may  set  up  a  subse- 
quent written  assignment  of  the  rents  to  be  received  until  full  payment  of 
the  debt.  Angier  v.  Masterson,  6  Cal.  61.  Where  the  mortgagee  is  to  have 
possession,  and  pay  the  debt  from  the  rents,  there  can  be  no  foreclosure,  un- 
less he  has  rendered  an  account.     Rankert  v.  Clow,  16  Tex.  9. 

Still  another  form  of  conveyance  by  way  of  security,  but  one  rarely  adopt- 
ed in  practice,  is  the  Welsh  mortgage.  In  a  Welsh  mortgage,  the  profits  keep 
down  the  interest,  instead  of  the  principal,  as  in  the  vivum  vadium ;  and,  of 
course,  no  length  of  possession  gives  the  mortgagee  an  absolute  title.  But, 
where  the  profits  are  excessive,  equity  will  order  an  account.  1  Pow.  373, 
a,  and  n,  E.  See  Thayer  v.  Mann,  19  Pick.  538  ;  Conway  v.  Shrimpton,  5 
Bro.  Pari.  187.  It  is  said,  "the  right  to  foreclose  is  incident  to  all  mort- 
gages, save  Welsh  mortgages."  Per  Curtis,  J.  Hall  v.  The  Sullivan,  &c. 
Law  Reporter,  July,  1853,  p.  144.  Another  form  of  Welsh  mortgage  is 
where  the  deed  is  made  in  trust,  that  the  mortgagee,  after  paying  interest 
and  expenses,  shall  apply  the  surplus  proceeds  to  the  principal.  3  Pow.  1 148, 
a;  Coote,  207.  In  a  Welsh  mortgage,  no  covenant  for  payment  of  the 
debt  is  inserted,  and  the  mortgagee  has  no  remedy  to  compel  redemption 
or  foreclosure  in  equity,  though  the  mortgagor  may  redeem  at  any  time. 
Coote,  222,  223.  In  some  instances  the  estate  is  conveyed  to  the  mort- 
gagee and  his  heirs,  till  from  the  rents  and  profits  he  shall  receive  princi- 
pal and  interest,  which  is  in  the  nature  of  a  Welsh  mortgage,  and  was  com- 
pared by  Lord  Hardwicke  to  a  tenancy  by  elegit,  so  that  the  estate  ceased 
upon  payment  of  the  debt,  and  the  mortgagor  might  maintain  ejectment, 
unless  the  mortgagee  had  remained  in  possession  twenty  years  after  such 
payment ;  which  time  would  also  bar  the  equity  of  redemption.  And  his 
Lordship  said,  the  mortgagor  had  the  same  right  as  the  conusor  under  the 
elegit  had,  to  come  into  a  court  of  equity  for  an  account.  In  a  similar  case, 
time  was  held  no  bar  to  redemption,  although,  by  the  mortgagor's  own  show- 
ing, more  than  sixty  years  had  elapsed  since  the  mortgagee  took  possession. 
Orde  V.  Heming,  1  Vern.  418  ;  Coote,  223.  In  Hartpole  v.  Walsh,  (5  Bro. 
P.  C.  275,)  a  bill  to  redeem  a  mortgage  in  the  nature  of  a  Welsh  mortgage 
was  dismissed  in  the  Irish  Chancery,  and  on  appeal  to  the  English  House  of 
Lords  the  judgment  was  affirmed.  In  that  case,  a  second  mortgage  had  been 
made  to  tlie  same  party,  conditioned  to  pay  the  whole  debt  at  any  time  after 
eighteen  months'  notice  ;  which  notice  had  long  since  been  given.  Coote, 
223.  But  in  a  later  case,  (Teulon  v.  Curtis,  Younge,  619,)  Lord  Lyndhurst 
1* 


6  THE   LAW   OF   MORTGAGES.  [CH.    I. 

3.  The  name  mortgage  originally  signified,  that  the  estate 
conveyed  became  dead  or  extinct  to  the_ mortgagor,  unless  the 
condition  was  performed  at  the  time  appointed.  A  mort- 
gage was  a  feoffment  upon  condition,  or  the  creation  of  a 
base  or  determinable  fee,  with  a  right  of  reverter  attached 
to  it.  The  debt  was  required  to  be  tendered  at  the  time 
and  place  prescribed  ;  and,  in  general,  the  transaction  was 
held  subject  to  the  strict  rules  which  governed  conditions.^ 

4.  All  property,  real  or  personal,  corporeal  or  incorporeal, 
movable  or  immovable,  may  be  the  subject  of  mortgage, 
with  the  qualification,  as  is  sometimes  said,  that  nothing 
can  be  mortgaged,  which  does  not  belong  to  the  mortgagor 
at  the  time  ;  ^  [d)  thus  advowsons,  rectories,  and  tithes ;  rever- 

1  Wade's  Case,  5  Co.  114  ;  Goodall's        ^  pjerce  v.  Emery,  32  N.  H.  484. 
Case,  ib.  95;  Lit.  §  332;  Co.  Lit.  205. 


considered  this  decision  to  have  been  made,  on  the  ground  of  the  impossibil- 
ity of  taking  the  long  and  complicated  accounts  after  the  lapse  of  ninety 
years,  and  of  unreasonable  delay  in  prosecuting  the  suit  for  redemption.  In 
that  case,  a  reversion  in  fee,  expectant  on  a  life-estate,  had  been  demiseJi 
for  five  hundred  years,  redeemable  on  payment  of  the  mortgage  debt,  but 
without  an)'  definite  time  fixed  for  payment.  The  mortgagor  covenanted  to 
pay  the  debt  on  demand ;  and  that,  until  payment,  the  mortgagee  might 
enter  and  enjoy  the  premises.  Lord  Lyudhurst  held  this  to  be  in  the  na- 
ture of  a  Welsh  mortgage,  and  dismissed  a  bill  filed  for  foreclosure. 

Mr.  Coote  says,  of  the  origin  of  mortgages,  —  "  In  early  times,  the  Jews 
were  the  great  money-lenders.  It  was  held  usury  for  Christians  to  lend 
money  at  interest ;  and,  accordingly,  if  lands  were  enfeoffed  to  a  creditor, 
and  the  rents  and  profits  received  by  him,  and  not  applied  to  the  principal 
of  the  debt,  although  not  prohibited  by  the  King's  Court,  it  was  punishable 
by  forfeiture  of  his  lauds  and  chattels,  if  he  died  possessed  of  the  pledge. 
And  this,  according  to  Glanville,  was  the  original  meaning  of  the  term  mor- 
tuum  vadium,  and  not  the  meaning  subsequently  attached  to  the  word  by 
Littleton  and  others."  Hence,  according  to  Mr.  Coote,  (Coote,  41,)  the 
vlvwu  vadium  was  a  security,  by  which  the  rents  were  from  time  to  time 
applied  to  reduce  the  principal  of  the  debt ;  the  mortuum  vadium,  one  by 
which,  till  payment  of  a  certain  sum,  the  rents  were  received  by  the  creditor 
and  not  accounted  for. 

((/)  The  term  equitable  mortgage  is  sometimes  applied,  where  this  requisite 
of  a  Ie"al  morto-ajje  is  wanting.     "  A  mort"a"e  of  lands  to  be  afterwards  ac- 


CH.    I.]  THE   LAAV    OF   MORTGAGES.  7 

sions  and  remainders  ;  (e)  possibilities  ;  (/)  rents  ;  franchises. 
But  (it  is  said)  a   debtor's  wearing  apparel,  bed,  or  other 

quii-ed,  being  a  mere  contract  to  convey  such  lands  as  a  security,  or,  as  it  has 
been  termed,  an  equitable  mortgage,  can  have  no  validity  against  third  persons 
who  acquire  legal  interests  in,  or  liens  upon,  the  property."  Per  Gholson,  J. 
Coe  V.  The  Columbus,  &c.,  10  Ohio  St.  391.  A.  purchased  a  lot  of  land  from 
B.,  and  took  from  him  a  bond  of  conveyance.  He  afterwards,  and  before  the 
payment  of  any  of  the  purchase-money,  mortgaged  the  land  to  C,  and  in  the 
mortgage  assigned  the  bond.  This  mortgage  was  recorded.  Subsequently  B. 
executed  a  deed  to  A.,  who  upon  the  same  day  mortgaged  to  D.  for  a  sum 
recited  in  the  mortgage  as  due,  "  after  a  fair  and  equitable  settlement  of 
accounts."  Held,  that  A.  had  an  interest  in  the  land,  which  he  could  con- 
vey by  mortgage ;  that  D.  could  not  be  treated  as  an  assignee  of  the  vendor's 
lien,  nor  deny  the  recitals  in  his  mortgage-deed,  for  the  purpose  of  giving 
him  priority  ovef  B.'s  mortgage,  and  that  the  payment  of  the  purchase-money 
by  A.  satisfied  the  lien  and  let  in  the  mortgage  of  B.  Alderson  v.  Ames, , 
6  Md.  52.  It  is  held  in  New  Jersey,  that  a  party  in  possession,  under  a 
parol  contract  to  purchase,  can  mortgage  his  interest.  Sinclair  v.  Armitage, 
1  Beasl.  174. 

A  late  case  in  New  Hampshire  is  illustrative  of  the  general  rule  with  its 
necessary  qualifications.  It  was  there  held,  that,  if  an  act  of  the  legisla- 
ture give  a  railroad  corporation  authority  to  issue  bonds  for  a  loan,  and  for 
security  to  mortgage  to  trustees  all  the  property,  and  all  the  rights,  fran- 
chises, powers,  and  privileges  of  the  corporation,  with  power,  on  breach  of 
condition,  to  sell  by  a  deed  which  should  convey  all  the  rights,  &c.,  which  the 
corporation  possessed,  and  the  use  of  the  railroad,  with  all  its  property  and 
rights  of  property,  for  the  same  purposes  and  to  the  same  extent  that  the 
corporation  could  use  the  same,  subject  to  the  same  liability  as  to  the  use  of 
the  I'oad  that  the  corporation  would  have  been  under  if  the  deed  had  not 
been  made  ;  such  bonds  and  mortgage  will  pass  property  afterwards  acquired 

{e)  As  in  case  of  a  husband's  interest  in  the  homestead  of  the  wife.  4 
Allen,  510.     See  Richardson  v.  Cambridge,  2  Allen,  116. 

(/)  It  is  said,  (2  Story,  Eq.  §  1021,)  a  possibility  or  expectancy,  like  that 
of  an  heir,  cannot  be  mortgaged.  (Otherwise  by  the  civil  law.)  Nor  the 
entire  succession  of  an  heir,  independently  of  the  elements  which  compose  it. 
This  does  not  fall  within  the  meaning  of  the  term  immovables,  as  used  in 
the  civil  code  of  Louisiana,  Art.  3256.  Voorbies  v.  De  Blanc,  12  La.  Ann. 
864.  So  a  right  of  preemption  and  improvements  on  the  public  domain  are 
not  susceptible  of  mortgage  in  Louisiana.  Renn  v.  Ott,  12  La.  Ann.  233  ; 
Gilbert  v.  Penn,  lb.  235;  Otherwise  in  California.  Whitney  v.  Buckman, 
13  Cal.  536. 


8  THE   LAW   OF   MORTGAGES.  [CH.   I. 

necessary  articles,  beasts  of  the  plough,  tools  of  trade  or  pro- 
fession, as  the  axe  of  a  carpenter  or  books  of  a  scholar,  not 
being  subject  to  execution  or  distress,  cannot  be  mortgaged 
or  pawned  without  delivery  of  actual  possession.     Though, 


by  the  road,  against  other  creditors  who  claim  by  later  mortgages.  Such 
a  mortgage  is,  in  substance  and  effect,  a  conveyance  of  the  road  and  corpora- 
tion as  an  entire  thing,  and  subsequent  property  becomes  part  of  the  orig- 
inal subject  by  accession,  and  as  incident  to  the  franchise  ;  as  in  case  of  a 
cargo  of  railroad  iron,  subject  to  the  claim  of  the  government.  And,  if  an 
agreement  Is  made  by  the  company  with  certain  individuals  that  they  shall  pay 
the  duties,  allow  the  company  to  lay  the  iron  on  their  track,  and  retain  a  lien 
on  the  Iron  for  the  money  so  advanced  ;  the  lien,  after  the  Iron  has  been  de- 
livered to  the  road,  cannot  be  asserted  against  the  mortgage  to  the  trustees, 
unless  they  had  notice  of  the  agreement,  and  gave  their  assent,  express  or 
implied.  But  the  assent  of  the  trustees  would  bind  the  bond-holders.  Pierce 
V.  Emery,  32  N.  H.  484.  In  the  same  case,  the  railroad,  before  the  mortgage 
to  the  trustees,  owned  a  cargo  of  Iron,  subject  to  duties,  and  agreed  with  the 
plaintiffs  that  they  might  pay  the  duties ;  that  the  railroad  might  lay  the  iron  ; 
and  that  the  plaintiffs.  If  the  road  did  not  repay  them  within  a  specified  time, 
might  take  up  the  iron,  and  hold  It  for  security  of  the  money  advanced. 
Held,  the  iron  having  passed  into  the  possession  of  the  road,  the  lien  for  the 
duties  was  gone,  and  could  not  be  asserted  by  the  plaintiffs  against  the  mort- 
gage to  the  trustees.  But  that  the  contract  was  valid  between  the  parties 
to  it,  and,  if  the  trustees  had  notice  of,  and  assented  to  it,  would  (in  equity) 
bind  the  trustees  and  bond-holders.  lb.  See  Chew  v.  Barnett,  11  S.  &  R. 
389  ;  Rowan  v.  Sharps',  &c.,  29  Conn.  282. 

While,  as  in  the  case  last  cited,  personal  property  may  pass  in  connection 
with  a  mortgage  of  the  realty  to  which  It  is  Incident ;  on  the  other  hand,  the 
land  may  be  mortgaged  by  a  description  which  applies  literally  only  to  that 
which  is  affixed  to  the  land.  Mortgage,  to  secure  advances  made  for  the 
purpose  of  erecting  a  building  upon  land,  of  "  all  (the  mortgagor's)  right, 
&c.,  which  he  now  has  In  the  foundation  or  stonework  of  said  building,  and 
which  he  may  have  in  and  unto  said  building  during  Its  erection  and  com- 
pletion and  after  It  is  completed."  Held,  the  land  passed.  Greenwood  v. 
Murdock,  9  Gray,  20.  The  rule,  that  whatever  Is  fixed  to  the  freehold  be- 
comes a  part  of  It,  prevails  between  the  mortgagor,  who  has  erected  fixtures 
subsequent  to  the  mortgage,  and  the  mortgagee,  as  strictly  as  between  ven- 
dor and  vendee,  and  the  purchaser  of  the  premises  at  a  foreclosure  sale 
will  acquire  title  to  the  fixtures  as  a  part  of  the  real  estate.  When  fixtures 
are  severed  they  become  personal  property,  and  the  owner  may  sue  for  the 
wrongful  detention  of  them.     Gardner  v.  FInley,  19  Barb.  317. 


CH.   I.]  THE   LAW   OF   MORTGAGES.  9 

if  property  exempt  from  execution  be  mortgaged,  and  sold 
under  a  judgment  upon  the  mortgage  debt,  the  mortgagor 
cannot  maintain  trespass  against  the  mortgagee.^  And  if 
a  mortgage  include  property  by  law  exempt  from  liability 
with  other  property,  the  mortgage  is  still  valid  in  part.  ^  (g-) 
Neither  can  a  pew,  it  seems,  be  mortgaged  in  gross.  If 
appurtenant  or  annexed  to  a  house,  it  may  be  mortgaged 
with  the  house,  and,  if  in  the  chancel,  may  perhaps  be  as- 
signed in  gross.  Nor  can  a  flowing  stream  of  water  be 
the  subject  of  mortgage,  being  publici  juris ;  and  an  individ- 
ual can  only  gain  a  right  to  it,  by  appropriating  so  much 
as  he  requires  for  a  beneficial  purpose.^ 

5.  "With  reference  to  the  parties  to  a  mortgage,  a  mort- 
gagee must  be  one  capable  of* holding  real  estate;  and,  it 
seems,  any  one  thus  capable  may  be  a  mortgagee.  In  Eng- 
land, an  alien  may  take  a  mortgage,  but  cannot  hold  the 
property  against  the  king.  Until  office  founds  however,  it 
remains  in  the  mortgagee.  If  he  die  before  office  found,  the 
law  will  vest  the  freehold  and  inheritance  in  the  king.  If 
two  be  mortgagees  jointly,  one  of  whom  is  an  alien,  and  he 
die,  the  other  will  not  hold  the  whole,  but  the  king  will  take 
a  moiety ;  but  till  office  found,  the  moiety  survives.  When 
the  king  takes  the  mortgaged  premises,  the  condition  is  dis- 
charged, and  he  holds  absolutely ;  and  it  should  seem  that 
the  estate  is  also  freed  from  the  equity  of  redemption  of  the 
mortgagor  in  the  king's  hands.  But  if  the  lands  are  recon- 
veyed  before  office  found,  the  lien  of  the  crown  is  gone.^     In 

1  Frost  V.  Shaw,  3  Ohio,  N.  S.  270.       See  Mendenhall  v.  West,  &c.,  36  Penn. 

2  McMurray  v.  Connor,  2  Allen,  205 ;     146,  n. 

Morrison  v.  Bean,  15  Tex.  257.  *  1  Pow.  106,  and  n. 

3  1  Pow.  17,  a  and  n;  Coote,  150. 


((/)  See  Beals  v.  Clark,  13  Gray,  18.  In  Virginia,  a  mortgage  of  prop- 
erty exempt  from  execution  is  prohibited.  Vir.  Code,  500.  In  Indiana, 
upon  a  bill  for  foreclosure,  the  defence,  that  the  property  was  exempt  from 
execution,  need  not  in  terms  deny  that  the  mortgage  was  given  for  the  pur- 
chase-money of  the  land.  This  is  proper  matter  for  a  reply.  Slaughter  v. 
Detiney,  10  Ind.  103. 


10  THE   LAW    OF   MORTGAGES.  [CH.  T. 

the  United  States,  the  law  has  been  very  generally  changed, 
so  as  to  allow  aliens  to  hold  real  estate.  Of  course,  this 
statutory  privilege  includes  the  title  by  mortgage,  and,  even 
independently  of  such  statutory  change,  it  is  held  that  a  writ 
of  entry  to  foreclose  a  mortgage  lies  against  an  alien  mort- 
gagor.^ So  an  alien  is  entitled  to  have  a  mortgage  foreclosed 
in  equity,  and  the  land  sold.  The  demand  is  regarded  as 
a  personal  one,  the  debt  being  the  principal,  and  the  land 
merely  incident.^  (h) 

6.  A  feme  covert  may  be  a  mortgagee,  (i)  It  has  been 
said,  she  cannot  be  a  mortgagor,  unless  by  construction 
of  equity  on  an  agreement  that  she  shall  possess  separate 
property,  (j)  But  she  may  make  an  equitable  mortgage  of 
such  property,  without  the  concurrence  of  trustees,  unless 
this  be  required  by  the  instrument  under  which  she  holds 

1  Waugh  V.  Riley,  8  Met.  290.  2  Hughes  v.  Edwards,  9  Wheat.  489. 


(A)  In  New  Jersey,  an  act  provides  specially  for  an  alien's  taking  a 
mortgage.     N.  J.  Rev.  Sts.  2. 

(i)  A  mortgage  is  held  valid,  if  made  by  a  party  competent  to  execute  it 
under  the  law  of  the  State  in  which  the  land  lies,  though  incompetent  by  the 
law  of  the  place  of  execution  ;  as  in  case  of  an  infant  feme  covert.  Sell  v. 
Miller,  11  Ohio  St.  331.  Whether  a  wife  can  have  a  separate  interest  in  a 
mortgage,  see  Cutler  v.  Lincoln,  3  Cush.  125.  A.  married  one  of  the  two 
daughters  of  B.,  a  deceased  intestate  ;  she  afterwards  died  without  issue. 
A.  administered  on  her  estate.  Held,  he  might  claim  her  share  of  the 
amount  due  on  a  mortgage,  given  to  B.  in  his  lifetime  by  C,  who  married 
the  other  daughter.  Moore  v.  Poland,  1  Halst.  Ch.  517.  A  feme  sole  sells 
land,  taking  back  a  writing  which  secures  a  lien  on  the  land.  Held,  a  mort- 
gage, and,  upon  her  marriage,  that  the  husband  might  release  it.  Marshal  v. 
Lewis,  4  Litt.  140.  But,  in  Pennsylvania,  where  husband  and  wife  con- 
veyed her  land,  taking  back  a  mortgage  to  both  f  held,  under  the  statute 
of  1848,  he  could  not  validly  release  the  mortgage  unless  the  debt  were 
substantially  paid.  Trimble  v.  Reis,  37  Penn.  448.  A  husband  may  mort- 
gage his  interest  in  the  wife's  estate.  Thus,  where  land  is  subject  to  a  right 
of,  homestead,  a  mortgage  by  the  husband  alone  passes  his  reversionary 
right.      Smith  v.  Province,  4  Allen,  516. 

(y)  It  is  held,  that  in  case  of  a  conveyance  to  a  trustee  for  the  use  of  a 
wife  and  her  children,  she  giving  her  notes  for  the  price,  and  the  trustee  a 


CH.  I.]  THE   LAW   OF  MORTGAGES.  11 

it.  So,  if  she  has  a  power  of  appointment,  which  may  be 
exercised  by  her  notwithstanding  her  coverture,  she  may 
appoint  a  conditional  estate.^  And  in  all  cases  where  the 
wife  has  a  separate  estate,  however  created,  or  whether  or 
not  conveyed  to  a  trustee  for  her  use,  she  has,  in  equity,  the 
same  power  over  it,  and  may  bind  it  b}^  mortgage,  without 
her  husband's  joining  in  the  deed,  as  if  she  were  difeme  sole? 
Thus  a  wife  may  mortgage  her  separate  property  for  her 
husband's  debts,  with  a  power  of  sale  in  case  of  default,  and 
may  reserve  the  equity  of  redemption  to  the  husband,  who 
alone  can  dispose  of  it.^  So  a  husband  bought  real  estate, 
and  directed  the  deed  to  be  made  to  another  person,  in  trust 
for  his  wife,  with  a  power  of  appointment  to  her  by  writing 
under  seal  or  by  will.  The  trustee  and  the  wife  afterwards 
executed  a  mortgage  of  the  real  estate,  to  secure  a  debt  due 
from  the  husband,  which  mortgage  was  duly  acknowledged 
by  the  wife.     Held,  the  mortgage  was  good.* 

7.  So  a  married  woman  may  bind  her  separate  estate  by 
a  mortgage  executed  jointly  with  her  husband.^  {k) 

8.  Thus,   where   a  wife  joined  with    her  husband    in    a 
mortgage  of  lands,  to  which  she  had  a  title  in  her  own  right, 

1  1  Pow.  106,  107,  and  n.  See  Tier-  cock,  29  Conn.  127 ;  Brown  v.  Glines, 
nan  v.  Poor,  1  Gill  &  J.  216  ;  Brundige  42  N.  H.  150  ;  Gerrish  v.  Mason,  4 
V.  Poor,  2,  1 ;  Eddleston  v.  Collins,  17  Gray,  432  ;  Roarty  v.  Mitchell,  7  Gray, 
Eng.  Law  «&  Eq.  296 ;  Pascal  v.  Sail-  243 ;  Micliener  v.  Cavender,  38  Penn. 
vinet,  1  La.  Ann.428;  Jarvisw.  Wood-  334;  Hatz's,  &c.  40  Penn.  209;  Bay- 
ruff;  22  Conn.  548;  Whitbread?;.  Smith,  ler  V.  Com.  lb.  37;  Glass  v.  War- 
23  Eng.  Law  &  Eq.  551 ;  Peabody  v.  wick,  lb.  140. 

Patten,  2  Pick.  517  ;  James  v.  Pisk,  9  ^  Firemens,  &c.  v.  Bay,  4  Barb.  407. 

S.  &  M.  144  ;  Bein  v.  Heath,  6  How.  ^  Demarest  v.  Wynkoop,  3  Johns. 

228 ;  Dig.  1848,  214  ;  Fitch  v.  Cotheal,  Ch.  144. 

2  Sandf.  Ch.  29 ;   Loomer  v.  Wheel-  *  Bobbins  v.  Abrahams,  1  Halst.  Ch. 

Wright,  3  Sandf.   Ch.   135 ;   Eaton  v.  465. 

George,  42  N.  H.  375;  Evans  v.  Mey-  '^  Sessions   v.  Bacon,   23   Miss.    (1 

lert,  19  Penn.  402 ;  Mallory  w.  Hitch-  Cush.)  272. 


mortgage  to  secure  them,  reciting  that  they  were  so  made ;  all  the  instru- 
ments constitute  one  transaction,  in  which  all  the  parties  joined.  Howard 
V.  Davis,  6  Tex.  1 74. 

(Ic)  A  mortgage  by  husband  and  wife,  of  her  land,  with  covenants  of  war- 
ranty by^both,  estops  both  to  deny  her  title  at  the  time  of  the  conveyance. 
Nor  can  they,  in  an  action  upon  the  mortgage  against  them,  be  permitted  to 


12  THE   LAW   OF   MORTGAGES.  [CH.  I. 

for  the  consideration  that  other  lands  should  be  conveyed  to 
a  trustee  for  her'benefit ;  the  trust  so  created  was  held  to  be 
supported  by  a  good  consideration.^  So  where  a  married 
woman,  a  cestui  que  trust,  by  the  deed  of  trust  is  given  full 
power  to  dispose  of  the  estate  after  the  husband's  death,  and 
the  same  power  during  his  life  with  his  assent ;  a  mortgage 
executed  by  both  is  a  good  execution  of  the  power .''^ 

9.  And  while  it  is  the  prevailing  rule  in  the  United  States, 
that  the  real  estate  of  a  married  woman  may  be  absolutely 
conveyed  by  the  joint  deed  of  husband  and  wife  ;  there  seems 
no  room  to  doubt,  that  it  may  be  validly  mortgaged  in  the 
same  way.  And  though  the  statutory  law,  relating  to  the 
rights  of  married  women,  neither  confer  nor  recognize  the 
right  to  mortgage,  a  wife  may  still  validly  join  with  her 
husband  in  a  mortgage  of  her  estate,  even  to  secure  his 
debt.3 

10.  If  2^  feme  covert  join  her  husband  in  a  mortgage,  repre- 
senting her  to  have  a  power  of  appointing  in  fee,  though  she 
had  in  fact  only  a  separate  estate  for  life,  the  mortgagee  naay 
still  enforce  his  security  against  her  life-estate.^ 

1  Hunt  V.  Dupny,  11  B.  Mon.  282.  ^  j^aton  r.  Nason,  47  Maine,  132. 

2  Campbell  v.  Low,  9  Barb.  585.  *  Coote,  154. 


show,  that  after  the  commencement  of  such  action  she  acquired  a  new  title, 
under  which  they  hold  possession.  The  doctrine  of  rebutter,  to  avoid  cir- 
cuity of  action,  is  not  admissible  in  such  cases.  Nash  v.  Spoffbrd,  10  Met. 
192. 

A  house,  subject  to  mortgage,  was  conveyed  by  warranty  deed,  in  trust 
for  a  married  woman,  with  the  consent  of  her  husband,  and  paid  for  with 
money  which  was  hers  before  marriage.  The  husband  and  wife  took  pos- 
session. The  wife  afterwards  procured  a  divorce  a  mensa,  and  the  grantee 
conveyed  the  house  to  her.  Before  the  divorce  the  husband  took  an  assign- 
ment of  the  mortgage,  entered  legally  for  foreclosure,  and  then  transferred 
the  mortgage  to  the  plaintiff,  who  brings  this  action  (of  forcible  detainer) 
against  the  wife.  Held,  the  assignment  of  the  mortgage  to  the  husband  was 
not  fraudulent  as  to  the  wife  or  the  mortgagor;  that  the  plaintiff  had  the 
legal  title,  and  was  entitled  to  judgment  for  possession.  Howard  v.  iloward, 
3  Met.  548. 


CHAP.  I.]  THE  LAW  OF  MORTGAGES.  13 

11.  Upon  a  mortgage  jointly  executed  by  husband  and 
wife,  a  scire  facias  is  properly  brought  against  both.^ 
And,  it  seems,  the  wife  must  be  made  a  party,  to  bar  her 
dower.^ 

12.  In  case  of  money  lent  by  the  wife  from  her  separate 
estate,  on  mortgage ;  the  mortgage  security  will  follow  the 
nature  of  the  money  represented  by  it,  and  the  wife  will  have 
similar  rights  over  it.^ 

13.  Where  the  husband  borrows  money  on  the  security 
of  the  wife's  estate,  the  money  being  under  his  control,  it  is 
supposed  to  come  to  his  use,  and  the  burden  is  on  him  to 
prove  otherwise.  Parol  evidel((^e  is  admissible.*  K  the  loan 
is  for  his  benefit,  and  is  paid  from  her  estate,  she  or  her  heir 
will  stand  as  creditor  of  his  estate  to  that  amount,  in  place 
of  the  mortgagee ;  and  will  have  preference  of  his  legatees, 
though  not  of  his  creditors.^  If  the  money  be  raised  by  the 
husband  to  pay  off  debts  of  the  wife  incurred  dum  sola,  her 
estate  must  bear  the  burden.^ 

14.  Parol  evidence  is  admissible,  that  the  wife  or  her  heir, 
after  the  death  of  the  husband,  promised  to  relinquish  theii 
claim.  But  not,  it  seems,  of  a  declaration  by  the  wife,  that 
the  money  was  intended  by  her  as  a  gift  to  the  husband, 
contrary  to  the  express  language  of  the  deed.^ 

15.  The  claim  of  the  wife  will  not  be  waived  by  her  cove- 
nant after  the  husband's  death,  that  the  estate  shall  stand 
charged  with  the  original  debt,  and  with  a  further  sum  ad- 
vanced to  her.^ 

16.  If  a  wife's  estate  is  subject  to  mortgage,  the  husband 
and  wife  are  not  bound  to  keep  down  the  interest  for  the 
benefit  of  her  heir ;  and,  therefore,  the  amount  of  interest 
due  at  her  death  should  be  added  to  the  principal,  and  the 
husband,  as  tenant  by  the  curtesy,  should  keep  down  the 

1  Gilbert  v.  Maggord,  1  Scam.  471.  ^  Coote,    559.       See    Lancaster    v. 

2  Ibid.  Evors,  4  Beav.  158. 

3  Coote,  154.  ^  Lewis  v.  Nangle,  Amb.  150. 
*  Kinnoul  v.  Money,  3  Swanst.  208,  ''  Coote,  559. 

n. ;  Clinton  v.  Hooper,  1  Ves.  jr.  173.         **  Ibid. 

VOL.  I.  2 


14  THE    LAW    OF   MORTGAGES.  *  [CHAP.  I. 

interest  of  the  aggregate  sum  during  his  life.     But  he  can- 
not claim  for  interest  paid  by  him  during  the  life  of  the  vvife.^ 

17.  A  wife  joined  with  her  husband,  in  a  mortgage  on 
their  separate  estates,  to  secure  his  debt.  Afterwards  he 
sold  his  own  property,  and  the  purchaser  received  a  deed 
from  both,  and  paid  him  a  sum  supposed  to  be  sufficient  to 
pay  the  mortgage  which  bound  both  estates,  but  which,  in 
fact,  was  not  sufficient.  The  Court  directed  the  balance  due 
on  the  mortgage  to  be  paid  out  of  the  proceeds  of  the  sale 
of  her  real  estate.  Held,  she  was  entitled  to  recover  from 
the  purchasers  of  his  estate  the  amount  of  such  balance.^ 

18.  Previously  to  a  marri^^e  then  in  contemplation,  the 
intended  husband,  by  his  agent,  paid  off  two  equitable  mort- 
gage debts  of  the  intended  wife,  secured  by  a  deposit  of 
title  deeds  belonging  to  her.  He  did  this,  apparently,  to  save 
the  expense  of  a  legal  mortgage,  which  would  otherwise  have 
been  required  by  the  mortgagees.  The  title  deeds  still  re- 
mained in  their  custody.  The  marriage  was  solemnized, 
and  there  was  no  settlement,  or  agreement  for  one.  There 
was  no  issue,  the  husband  died  before  the  wife,  intestate, 
and  she  took  out  administration.  Held,  he  did  not  intend  to 
make  a  gift  to  her  of  the  money  which  he  had  paid  for  her, 
and  that  the  debt  still  existed  on  the  security  of  the  equitable 
mortgage  in  favor  of  his  personal  estate.^ 

19.  The  law  carefully  protects  the  wife's  right  of  redeem- 
ing her  estate.  Thus,  upon  a  bill  in  equity  by  husband  and 
wife  to  redeem  land  mortgaged  by  them,  the  defendant  pro- 
duced a  paper,  found  among  the  papers  of  a  deceased  sub- 
scribing witness,  signed  and  sealed  by  the  mortgagee  and 
the  husband,  and  reciting  that  the  mortgagee  had  taken 
possession  to  foreclose,  and  leased  to  the  husband  for  a  cer- 
tain rent.  Held,  the  mortgage  was  not  foreclosed.  The 
Court  say,  "  It  was  the  wife's  estate,  and  there  is  no  evi- 
dence that  she  consented,  to  or  had  knowledge  of  the  sup- 


1  RuBCombe  v.  Hare,  2  Bligli,  N.  S.        »  Gooch  v.  Goocli,  8  Eng.  Law  &  Eq. 
192.  141. 

2  Sheidle  v.  Weishlec,  4  Harris,  134. 


CHAP.  T.]  THE  LAW  OF  MORTGAGES.  15 

posed  entry.  In  equity,  she  would  be  let  in  to  redeem,  care 
being  taken  that  the  right  of  the  husband  should  be  trans- 
ferred to  the  mortgagee.  There  is  no  evidence  of  an  entry 
or  actual  possession  by  the  mortgagee.  It  does  not  appear 
whether  this  paper  is  an  escroiv  or  not.  It  can  be  evidence 
only  by  way  of  estoppel  to  the  husband,  and  does  not  bind 
the  wife.  The  transaction  must  be  considered  as  an  attempt 
to  create  a  foreclosure  privately,  and  without  the  knowledge 
of  the  wife.  On  that  ground  it  is  bad  in  equity  ;  and  it  is 
bad  in  law  for  want  of  evidence  of  a  delivery  of  the  paper."  ^ 
So,  upon  a  mortgage  by  husband  and  wife  of  her  land,  the 
equity  of  redemption  was  sold  on  an  execution  against  him. 
After  his  death,  she  brings  a  bill  in  equity  to  redeem  against 
the  execution  purchaser,  who  had  also  taken  an  assignment  of 
the  mortgage,  and  entered  under  a  writ  of  possession.  Held, 
she  might  redeem  on  payment  of  the  mortgage  debt  only. 
Wilde,  J.,  says,  ''  If  a  widow  be  dowable  of  an  equity,  she  is 
entitled  to  redeem  ;  and  if  she  has  this  right  in  the  estate  of 
her  husband,  it  would  be  a  strange  anomaly  if  she  had  not 
as  much  right  in  her  own  inheritance.  The  equity  is  inher- 
ent in  the  land,  and  as  the  estate  was  held  before  the  mort- 
gage, so  is  the  equity  after.  If  there  is  a  legal  performance 
of  the  condition,  the  estate  revests  without  the  aid. of  a  court 
of  equity ;  and  if  there  is  an  equitable  performance,  the 
court  will  decree  a  restoration  of  the  estate ;  and  in  neither 
case  does  the  husband  acquire  any  new  right ;  nor  can  a 
creditor  of  the  husband,  by  attaching,  &c.,  acquire  any  great- 
er right  than  the  husband  had  before  the  sale."  He  proceeds 
to  remark,  that  even  the  English  doctrine  of  tacking  would 
not  apply  to  the  case  of  husband  and  wife.^  [l) 

1  Hadley  v.  Houghton,  7  Pick.  29.  2  Peabody  v.  Patten,  2  Pick.  517, 519, 

520. 


(J)  It  is  held  in  New  Jersey,  that  a  mortgage  made  by  the  husband  will  not 
be  postponed  to  a  subsequent  joint  mortgage  because  the  wife  did  not  join 
in  the  former.     Hinchman  v.  Stiles,  1  Stockt.  361.  ^ 


IG  THE   LAW    OF  MORTGAGES.  [CHAP.  I 

20.  An  infant  may  be  a  mortgagee.  Whether  he  is  the 
original  grantee,  or  takes  by  descent,  he  is  bound  by  the  con- 
ditions of  the  deed.  The  mortgage  must  be  good  in  the 
whole  or  void  in  the  whole.^ 

21.  The  mortgage  of  an  infant  is  not  void,  but  only  void- 
able. Hence,  where  an  infant  mortgaged  his  land,  and  after 
coming  of  age  made  an  absolute  conveyance  of  it,  recogniz- 
ing, and  subject  to,  the  mortgage  ;  the  latter  deed  was  held 
to  be  a  confirmation  of  the  former  one,  and  the  mortgagee 
recovered  judgment  for  the  land  against  the  second  gran- 
tee.2  {m) 

22.  K  an  estate  descend  to  an  infant  subject  to  incum- 
brances, the  guardian,  without  direction  of  the  court  of 
equity,  may  apply  the  profits  to  discharge  them ;  namely, 
to  pay  the  interest  of  any  real  incumbrance,  and  the  princi- 
pal of  a  mortgage,  because  that  is  a  direct  and  immediate 
charge  upon  the  land  ;  but  not  the  principal  of  any  other  real 
incumbrance.^ 

23.  A  joint  tenant  may  mortgage  his  undivided  interest. 
So  a  tenant  in  common,  or  partner,  (w)     The  mortgage  will 

1  Parker  v.  Lincoln,  12  Mass.  17,  Mass.  220.  See  Loonier  v.  Wheel- 
18.  Wright,  3  Sandf.  Chan.  135. 

-  President,   &c.  v.  Chamberlin,  15        *  1  Pow.  284,  a. 

(m)  A  minor  entered  into  copartnership  with  a  person  of  full  age,  bring- 
ing money  into  the  concern.  During  his  minority,  the  partnership  was  dis- 
solved ;  the  minor  sold  out  to  the  other  partner,  who  received  and  retained 
exclusive  possession  of  the  property,  and  afterwards  mortgaged  it  to  the 
minor  to  secure  a  note  given  in  consideration  of  the  sale.  The  mortgagor 
afterwards  becoming  insolvent,  the  mortgagee  made  application  to  the  mas- 
ter in  chancery  for  a  sale  of  the  projjerty  under  the  statute.  Held,  the 
application  sliould  Vjc  granted.  Shaw,  Ch.  J.,  says  :  "  The  validity  of  the 
sale  to  the  insolvent  did  not  depend  wholly  upon  his  (the  minor's)  ability 
and  legal  capacity  to  execute  a  bill  of  sale  under  seal ;  but  it  took  effect 
from  the  delivery  of  the  goods,  and  his  title  thereto  has  never  been  drawn 
in  question.  None  of  the  contracts  and  stipulations  entered  into  by  him 
have  been  avoided  on  the  ground  of  infancy ;  and  neither  the  insolvent  nor 
bis  creditors  have  reason  to  complain  of  the  plaintiff  on  that  score."  Bar- 
nard V.  Eaton,  2  Cush.  294,  302. 

(n)  The  following  case  illustrates  the  rights  of  partners  and  their  joint 


CHAP.  I.]  THE  LAW  OP  MORTGAGES.  17 

operat^as  a  severance  of  the  joint  tenancy,  if  in  fee  ;  if  for 
years,  djfceverance  pro  tanto} 

1  1  Pow.  18,  and  n. 


creditors,  in  case  of  a  mortgage  made  by  one  of  them  for  his  private  debt. 
Two  partners  took  a  lease  of  a  building  and  water-power,  and  put  machinery 
into  the  building  for  the  purpose  of  carrying  on  their  joint  business.  One 
of  them  afterwards  mortgaged  his  interest  for  his  private  debt,  but  the  part- 
ners remained  in  possession  and  use  of"  the  property.  A  bill  was  subse- 
quently filed  for  foreclosure  of  the  mortgage,  and  a  sale  of  the  moi'tgagor's 
interest,  to  which  the  lessor  was  made  party,  the  firm  being  indebted  to  him 
for  rent.  Held,  the  mortgagee  could  claim  only  what  remained  of  the  mort- 
gagor's interest,  after  paying  the  firm  debts,  the  rent  included.  Receivers, 
&c.  V.  Godwin,  1  Halst.  Cha.  334.     See  Mosely  v.  Garrett,  J.  J.  Mar.  212. 

A.  and  B.,  partners  and  tenants  in  common  of  lands,  dissolved  their  part- 
nership, agreeing  that  B.  should  take  all  the  partnership  property,  including 
the  lands,  and  pay  the  debts.  A.  conveyed  his  share  to  B.,  but  the  deed 
was  not  recorded  in  the  town  where  a  part  of  the  lands  was  situated.  B. 
mortgaged  to  A.  all  the  partnership  lands,  to  secure  him  against  liability  for 
debts  of  the  firm,  and  also  mortgaged  the  part  above  mentioned  to  C.  to 
secure  a  debt  due  him  from  the  firm,  specified  in  B.'s  mortgage  to  A.  A. 
and  B.  afterwards  conveyed  the  said  part  to  a  stranger.  Held,  that  the 
stranger  might  hold  A.'s  moiety  against  C.,  but  that  C.  was  entitled  to  a 
decree  of  foreclosure  on  the  other  moiety,  as  against  A.  and  B.,  notwith- 
standing the  prior  mortgage  from  B.  to  A.  Frothingham  v.  Shephard,  1 
Aik.  65. 

Where  a  partner  gives  a  mortgage  upon  his  separate  property,  to  secure 
a  partnership  debt,  he  thereby  becomes  a  surety  for  the  firm,  and  is  entitled 
to  the  rights  and  privileges  of  that  character;  and  his  separate  creditors 
succeed  thereto,  and  have  a  right  to  insist  that  the  partnership  property  be 
first  applied  towards  the  debt,  before  resort  is  had  to  the  separate  estate  of 
the  surety ;  and  if  the  latter  is  first  applied,  his  separate  creditors  will  be 
entitled  to  be  subrogated  to  the  rights  of  the  creditor  as  against  the  partner- 
ship fund.     Averill  v.  Loucks,  6  Barb.  470. 

By  the  articles  of  copartnership  of  a  private  banking  association,  each 
partner  was  to  give  a  mortgage  to  the  partnership,  to  secure  the  payment  of 
his  stock.  Mortgages  were  executed,  and  recited,  that  they  were  to  secure 
the  bonds  for  the  payment  of  the  stock  in  five,  ten,  and  fifteen  years,  and  for 
the  purpose  of  "  binding  and  rendering  himself  liable  to  pay  the  "  partner- 
ship debts ;  and  in  the  condition  of  the  mortgages  it  was  recited,  that  the 
mortgage  should  be  discharged  when  the  liabilities  of  the  partnership  were 
all  paid.  Held,  one  of  the  objects  of  the  mortgages  was  to  secure  the  debts 
2* 


18  THE   LAW   OF   MORTGAGES.  [CH.  I. 

24.  Where  land  is  held  in  common,  a  mortgage  from  one 
owner,  for  his  proportion  of  a  debt  secured  by  mo|kage  of 
the  whole,  is  a  continuation  of  the  original  lien.^ 

25.  One  taking  a  mortgage  from  a  tenant  in  common  is 
not  bound  by  a  partition,  between  the  latter  and  the  other 
tenants,  upon  the  petition  of  such  other  tenants,  to  which 
the  mortgagee  was  not  made  party,  unless  he  confirms  the 
partition.  The  mortgagor,  in  such  case,  being  allowed  to 
remain  in  possession  by  the  mortgagee,  may  occupy  either 
in  common  with  the  co-tenants  or  in  severalty.  Hence, 
notwithstanding  his  sole  occupation,  the  mortgagee  may 
maintain  a  petition  for  partition,  not  being  disseized 
thereby.- 

26.  "Where,  pending  proceedings  for  partition,  a  tenant  in 
common  mortgages  his  undivided  share,  and  there  is  an 
actual  partition,  the  mortgage  will  attach  to  the  portion  set 
off  to  him.2  And  if,  instead  of  partition,  the  premises  are 
sold,  and  a  part  of  them  purchased  by  the  mortgagor,  who 
is  to  pay  a  certain  amount  to  the  other  tenants,  the  mort- 
gage will  attach  as  a  lien  to  the  land  so  purchased.*  If  the 
mortgagor  have  a  larger  interest  than  was  covered  by  the 
mortgage,  and  the  whole  be  set  off  together  in  severalty, 

•  the  lien  of  the  mortgagee  will  attach,  as  tenant  in  common, 

1  Lee  V.  Porter,  5  Johns.  Ch.  2G8.  98  ;  Jackson  v.  Pierce,  10  Johns. 
See  Koswell  v.  Siraonton,  2  Cart.  516.      414. 

2  Colton  V.  Smith,  11  Pick.  311.  *  Westervelt  v.  Haff,  2  Sandf.  Ch. 
8  Westervelt  v.  Half,  2  Sandf.  Ch.     98. 


of  the  partnership,  and  a  creditor  of  the  partnership,  holding  a  mortgage, 
might  foreclose  the  same  on  account  of  such  partnership  indebtedness, 
although  the  first  instalment  on  the  bond  for  the  payment  of  his  stock 
by  the  mortgagor  had  not  become  due.  Boisgerard  v.  Wall,  1  S.  &  M. 
Ch.  404. 

Ujjon  a  dissolution  of  partnership  between  A.  and  B.,  A.  agreed  to  pay  a 
partnership  debt,  secured  by  mortgage  of  B.'s  land.  B.  afterwards  mort- 
gaged the  land  to  C.  Held,  C.  became  entitled  to  the  benefit  of  B.'s  equity, 
to  compel  A.  to  discharge  the  prior  mortgage.  Kinney  v.  McCuUough, 
1  Sandf.  Ch.  370. 


CH.  I.]  '  THE    LAW   OF   MORTGAGES.  19 

to  the  whole  land  set  off,  in  the  proportion  that  the  quan- 
tity mortgaged  bears  to  the  whole  land  set  off.^  (o) 

27.  It  has  already  been  stated,  that  a  mortgage  is  a  deed 
made  upon  a  condition,  which  condition  appears  by  the  deed 
itself.  It  was  the  early  doctrine  of  the  law,  that,  if  the  de- 
feasance or  condition  was  contained  in  a  deed  executed  after 
the  feoffment,  it  came  too  late ;  because,  livery  of  seisin  or 
corporal  tradition  being  necessary  at  common  law  to  all  con- 
veyances of  land,  no  mortgage  thereof. was  valid,  unless  pos- 
session also  was  delivered  to  the  mortgagee,  and  the  livery 
coram  paribus  in  such  case  attesting  an  infeudation,  in  which 
there  was  no  condition,  the  tenant  must  hold  the  land  accord- 
ing to  that  investiture.^  (p) 

28.  At  common  law,  a  distinction  was  made  between  a 
mortgage  made  to  secure  a  sura  of  money  as  a  mere  gift, 
and  one  made  to  secure  a  previous  debt.  In  the  former  case, 
a  tender  within  the  time  discharged  the  estate,  and  gave  the 

1  Eandell  v.  Mallett,  2  Shepl.  51.  2  j  po^y.  5. 


(0)  In  reference  to  the  rights  and  liabilities  of  joint  mortgagors  in  con- 
tributing to  pay  the  mortgage  debt,  see  oh.  11,  s.  56,  n.  With  regard  to 
the  mortgages  of  corporations ;  in  Pennsylvania,  by  a  late  act,  the  Supreme 
Court  have  all  the  jurisdiction  of  a  court  of  chancery,  in  all  cases  of  mort- 
gages given  by  corporations.     Laws  of  Pa.  1862,  p.  477. 

As  to  the  acknowledgment  or  attestation  of  mortgages  by  persons  inter- 
ested in  the  party  corporation,  see  Laws  of  Connecticut,  1856,  p.  86. 

In  Indiana,  purchasers  of  railroads,  plank  roads,  turnpike  roads,  or  Mc- 
Adamized  roads,  under  foreclosure  of  mortgages  executed  by  companies, 
owners  of  such  roads,  shall  become  owners  thereof,  if  within  three  months 
they  organize  under  the  original  charter.  A  statement  of  such  organiza- 
tion, &c.  shall  be  filed  for  record  in  the  office  of  the  recorder  of  each  county 
through  or  into  which  said  road  extends.  Such  statement  to  be  evidence 
of  the  organization  of  said  company.     Acta  of  Ind.  1859,  p.  152. 

{p)  By  the  feudal  law,  the  mortgage,  as  well  as  absolute  alienation  of  land, 
required  the  consent  of  the  lord.  Glanville  says,  — "  Nulli  liceat  feudum 
vendere  vel  pignorare  sine  permissione  iliius  domini."  The  maxim  of  the 
feudal  law  was,  —  "  Feudalia,  invito  domino,  aut  agnatis,  non  recte  subjici- 
untur  hypothecaj,  quamvis  fructus  posse  esse,  receptum  est."  Feud.  lib.  2, 
tit.  55  ;  Bac.  Abr.  Mortgage,  A. 


20  THE   LAW    OF   MORTGAGES.  [CH.  I. 

mortgagor  a  right  of  entry,  and  the  mortgagee,  having  no 
fm-ther  lien  upon  the  land,  nor  any  personal  right  of  action, 
was  left  without  remedy  for  his  money.  But  in  the  latter 
case,  though  such  tender  discharged  the  land,  yet  the  debt 
remained,  and  might  be  recovered  by  action  ;  for  it  was  a 
duty,  distinct  from  the  condition,  and  therefore  not  lost  by 
the  tender  and  refusal.^ 

29.  In  the  performance  of  conditions,  a  distinction  is  made 
between  those  which  are  to  create,  and  those  which  are  to 
destroy^  an  estate ;  for  the  former  may  be  performed,  by  con- 
struction of  law,  as  near  the  condition  as  may  be,  according 
to  the  intent ;  but  the  latter  are  to  be  strictly  construed,  un- 
less in  special  cases.  The  conditions  of  mortgages  were 
classed  under  the  former  of  these  heads  ;  for  though,  by  per- 
formance, the  estate  was  to  be  divested  out  of  the  mortgagee, 
yet  it  was  with  intent  to  reinstate  the  mortgagor  in  his  inher- 
itance.2 

30.  The  doctrine,  as  to  tender  of  performance  of  the  con- 
dition of  a  mortgage,  is  stated  by  the  Court  in  New  Hamp- 
shire as  follows  ;  showing  that  the  ancient  law  was  as  rigid 
in  protecting  the  rights  of  the  mortgagor,  where  he  was 
guilty  of  no  neglect,  as  in  decreeing  an  absolute  forfeiture 
of  his  estate,  for  the  slightest  non-compliance  with  the  con- 
dition of  the  mortgage. 

31.  "  At  common  law,  when  lands  were  granted  upon  con- 
dition that  the  conveyance  should  be  void  upon  the  payment 
of  a  certain  sum  at  a  particular  time  by  the  grantor ;  if  he 
paid  the  money,  or  made  a  legal  tender  of  it,  at  the  day,  he 
immediately  acquired  a  right  of  entry,  and  the  land  was  for- 
ever discharged  from  the  incumbrance.-^  Coke,  in  his  com- 
mentary upon  this  section  of  Littleton,  says,  that  '  this  is  to 
be  understood,  that  he  that  ought  to  tender  the  money  is  of 
this  discharged  forever  to  make  any  other  tender ;  but  if  it 
were  a  duty  before,  though  the  feoffer  enter  by  force  of  the 

1  1  Pow.  5,  G  ;  Co.  Lit.  219,  b  ;  Coote,  206,  a ;  213,  a ;  221,  b ;  Wyatt's  case, 
47.  Cro.  Car.  427. 

^  1  Pow.  0  ;  Co.  Lit.  219,  b ;  205,  a;        ^  Lit.  338. 


en.  I.]  THE   LAW   OP  MORTGAGES.  21 

condition,  yet  the  debt  or  duty  remaineth;'  'as  if  A.  bor- 
rowed of  B.  £100,  and  after  mortgageth  land  to  B.  upon 
condition  for  payment  thereof,  if  A.  tender  the  money  to  B. 
and  B.  refuseth  it,  A.  may  enter  into  the  land,  and  the  land 
is  freed  forever  of  the  condition,  but  yet  the  debt  remaineth 
and  may  be  recovered  by  action  of  debt'  And  the  law  is 
without  doubt  the  same  here  at  this  day.  If  the  condition 
of  a  mortgage  is  performed  at  the  day,  or  if  a  legal  tender  is 
made  and  refused,  the  land  is  forever  discharged  from  the 
incumbrance.  And  at  common  law,  if  the  mortgagor  neg- 
lected to  pay  at  the  day,  the  estate  of  the  mortgagee  became 
absolute,  and  the  land  was  gone  forever."  ^  (q) 

32.  If  time  and  place  of  payment  were  fixed,  tender  must 
be  made  accordingly  ;  if  no  place  were  fixed,  the  money  be- 
ing a  sum  in  gross,  and  collateral  to  the  title  of  the  land,  the 
mortgagor  was  bound  to  seek  the  mortgagee  and  tender  the 
money  personally,  if  within  the  realm,  and  it  was  not  sufli- 
cient  to  tender  it  on  the  land.  K  a  place  were  named,  it 
seems,  a  notice  of  readiness  there  would  be  sufficient.  So, 
attendance  at  the  mortgagee's  house,  in  case  of  previous 
notice.     If  no  time  were  appointed,  the  mortgagor  had  his 

1  Per  Kichardson,  Ch.  J.     Swett  v.  ton,  4  Bibb.  451 ;  King  v.  The  State, 
Horn,  1  N.  H.  332,  333.    Darling  v.  &c.  7  Cush.  7.     See  Merritt  v.  Lam- 
Chapman,  14  Mass.  104  ;  Hill  v.  Rob-  bert,  7  Paige,  344. 
ertson,  24  Miss.  368 ;  Blanchard  v.  Ken- 


(q)  "  But  if  the  money  is  not  paid  by  the  day,  the  condition  on  which  the 
land  was  to  revert  to  the  mortgagor  has  not  been  complied  with,  and  the 
interest  of  the  mortgagor  in  the  land  is  then  reduced  to  a  mere  equity  of 
redemption ;  and  an  actual  payment,  not  a  mere  tender,  then  becomes  nec- 
essary to  discharge  the  legal  and  equitable  lien  of  the  mortgagee  upon  the 
land."  1  N.  H.  333.  In  New  York,  it  has  been  held,  that  the  lien  of  a 
mortgage  will  be  extinguished  by  a  tender  before  foreclosure ;  and  the  mort- 
gagee, if  in  possession,  may  be  ejected  therefrom.  But  the  mortgagor  must 
pay  costs,  if  the  tender  was  not  made  till  after  the  day  fixed  for  payment. 
Edwards  v.  Ins.  Co.,  21  Wend.  467  ;  26  Ibid.  541 ;  Arnot  v.  Post,  6  Hill,  65. 
But  in  Maine,  a  tender  of  the  amount  of  a  note  secured  by  mortgage,  made 
long  after  the  maturity  of  the  note,  does  not  discharge  the  mortgage.  Smith 
V.  Kelley,  27  Maine,  237.     See  Ritger  v.  Parker,  8  Cush.  149.     Also  ch.  17- 


22  THE   LAW   OF  MORTGAGES.  [CH.  I. 

whole  life  for  payment  of  the  money,  but  his  heirs  could  not 
pay  it,  unless  expressly  mentioned.  If  a  time  were  fixed, 
though  the  condition  mentioned  only  the  mortgagor  himself, 
his  heir,  executor,  administrator,  or  the  guardian  of  the  heir, 
might  tender  the  money  and  save  the  condition.  If  the 
words  of  the  condition  were  for  payment  to  the  feoffee  or 
his  heirs,  the  money  could  not  be  paid  to  the  executor  or 
assigns ;  if  to  "  heirs  or  assigns,"  and  the  mortgage  was 
transferred,  it  might  be  paid  either  to  the  first  or  second 
feoffee  ;  or,  if  the  first  feoffee  was  dead,  to  his  heirs,  but  not 
his  executors ;  if  to  "  heirs,  executors,  or  assigns,"  it  might 
be  paid  to  either.^ 

33.  If  an  account  was  stated  between  the  parties,  and  the 
balance  paid,  or  a  new  security  taken  by  bond  or  statute, 
it  was  a  good  performance.  If  the  mortgagee,  before  any 
transfer,  received  the  money,  and  returned  the  whole  or  a 
part,  this  was  a  good  performance  ;  but  if  the  condition  was 
for  payment  to  the  feoffee,  his  heirs  or  assigns,  and  the  feoffee 
transferred  the  mortgage  and  died,  and  the  mortgagor  paid 
the  money  to  the  heir  of  the  first  mortgagee,  who  returned  a 
part  of  it ;  this  was  held  not  sufficent  to  divest  the  title  of 
the  assignee.2 

34.  Substantially  the  same  principles,  relating  to  the  effect 
of  the  breach  of  condition  in  a  mortgage,  are  still  in  force,  so 
far  as  the  jurisdiction  of  courts  of  law  is  concerned.  Thus, 
it  has  been  stated  in  Massachusetts,  that  a  mortgage,  al- 
though a  pledge  at  first,  becomes  an  absolute  interest,  unless 
redeemed  at  the  time  limited  for  the  payment  of  the  money, 
or  other  performance  of  the  condition.  If  it  be  not  literally 
performed,  by  payment  of  the  money  at  the  day,  the  estate 
becomes  subject  to  the  dower  of  the  wife  of  the  mortgagee, 
and  to  all  other  incumbrances  by  him  ;  although  the  money 
should  be  afterwards  paid,  and  the  estate  reconveyed  to  the 
mortgagor.^ 

1  Cootc,  45,  513.  17  Mass.  421 ;  Pow.  on  Mort.  9,  10. 

'^  Clootc.  47.     See  Harmer  v.  Priest-  See  Montgomery  v.  Brucre,  1  Sonth. 

ley,  21  Kng.  Law  &  Eq.  496.  207  ;    Lull    v.    Matthews,    19   Verm. 

« Per  Wilde,  J.    Parsons  v.  Welles,  322.  1 


CH.   I.]  THE   LAW   OF  MORTGAGES.  23 

35.  Upon  these  principles,  as  has  been  stated,  the  wife 
of  a  mortgagee  in  fee  of  a  forfeited  mortgage  is  entitled 
to  dower.^  But  if  she  were  to  prosecute  her  claim,  a 
court  of  equity  would  undoubtedly  interpose  and  saddle 
her  with  all  the  expenses.^  But  it  has  been  held,  that  there 
is  no  curtesy  to  the  husband  of  a  mortgagee,  unless  there 
has  been  a  foreclosure,  or  redemption  is  barred  by  lapse  of 
time.^ 

36.  Mr.  Coventry,  the  learned  annotator  of  Powell  on 
Mortgages,  remarks,*  that  many  modern  conveyancers  have 
substituted  for  the  usual  condition  of  a  mortgage,  an  agree- 
ment by  the  mortgagee  to  reconvey,  on  payment  of  the  debt,  {r) 
It  makes  no  difference  that  there  is  a  prior  mortgage.^  And 
such  agreement,  as  well  as  a  condition,  may  be  contained  in 
a  separate  instrument  from  the  conveyance.  Thus  a  con- 
veyance by  a  deed  absolute  upon  its  face,  to  secure  a  debt 
due  from  another  person,  and  an  agreement  by  the  creditor, 
to  convey  to  the  debtor,  upon  payment  of  the  debt,  were 
held  to  constitute  a  mortgage.^  The  advantage  of  a  con- 
dition is  said  to  be,  that,  upon  performance  of  it,  the  estate 
ipso  facto  revests  in  the  mortgagor,  without  the  necessity,  as 
in  the  other  case,  of  a  reconveyance  ;  while  it  is  also  attended 
with  the  disadvantage,  that,  in  case  of  an  assignment  of  the 
mortgage,  payment  to  the  mortgagee  himself  might  revest 
the  title  in  the  mortgagor,  and  thus  a  wrong  be  done  to  the 
assignee.'^  It  is  remarked,  however,  that  this  inconvenience 
is  rather  imaginary  than  real,  because  no  debtor  would  be 
likely  to  pay  a  mortgage  without  having  it  delivered  up  to 

1  Hard.  466  ;  Co.  Lit.  221,  a.  Claggett,  3  Md.  82  ;  Cross  v.  Hepner, 

'^  Nash   V.  Preston,    Cro.  Car.   190  ;  7  Ind.  359 ;  Murphy  v.  Cilley,  1  Allen, 

Noel  I'.  Jevon,  2  Freem.  43;  Bevant  w.  109;    Woodward  v.  Pickett,  8  Gray, 

Pope,   ib.    71.      See  infra ;    Dower   in  617. 

Equities  of  Redemption.  *  Woodward  v.  Pickett,  8  Gray,  617. 

=^  Casborn  v.  Inghsh,  7  Vin.  157.  '^  Weed  v.  Stevenson,  1  Clark,  166. 

*  1  Pow.  9,  n.  H.     See   Charles  v.  '^  1  Pow.  9,  n.  H. 

(?•)  But  a  conveyance,  with  a  bond  given  back  to  reconvey  on  failure  of 
payment.,  vests  the  whole  legal  and  ecjuitable  title  in  the  grantee  till  such 
reconveyance.     Speakman  v.  Sjjeakman,  4  Ind.  420. 


24  THE   LAW   OF   MORTGAGES.  [CH.   I. 

him.^     It  is  further  said,  that  a  condition  for  a  reconveyance 
can  be  fulfilled  only  by  such  reconveyance.^ 

37.  The  precise  form  in  which  the  condition  is  expressed, 
or  the  name  given  to  the  transaction  by  the  parties,  is  im- 
material, more  especially  in  equity,  provided  the  substance 
and  intent  distinctly  appear.  "  Artificial  words  do  not  alter 
the  nature  of  it."  ^  Thus  a  condition,  that  the  convey- 
ance shall  be  void  in  a  certain  event,  is  not  absolutely  nec- 
essary to  a  mortgage.*  So  a  deed  containing  the  following 
clause,  —  "  Provided  the  grantor  shall  pay  off  certain  lega- 
cies bequeathed  by  the  last  will  of  J.,  which  legacies  are  a 
charge  upon  the  land  herein  described,  then  these  presents 
shall  cease  ;  "  was  held  a  mortgage.^  So  an  absolute  deed, 
with  an  accompanying  agreement,  that  the  lender  of  the 
money  thus  secured  shall  receive  the  rents  and  profits  till  the 
debt  is  due,  and  reconvey  on  payment.^  So  a  deed,  made 
in  terms  to  secure  certain  debts  recited  therein,  is  a  mort- 
gage.' (s)     "  Or   a  conveyance  by  a  judgment-debtor  to  a 

1  See  Prest.  Conv.  200.  &  Stewart  v.  Hutchins,  6  Hill,  143. 

2  Coote,  48.  6  Cross  v.  Hepner,  7  Ind.  359. 

^  Com.  Dig.  Chancery,  4,  A  2.  ''  Skinner  v.  Cox,  4  Dev.  59 ;  Bald- 

*  Steel  V.  Steel,  4  Allen,  417.  win  v.  Jenkins,  23  Miss.  206  ;  Cotter- 


(s)  But,  as  to  the  distinction  between  a  deed  of  trust  for  security  or  pay- 
ment of  debts,  with. a  power  of  sale,  and  a  conditional  deed  or  mortgage, 
see  Power  of  Sale ;  Best  v.  Carter,  19  Eng.  Law  &  Eq.  56;  Bennett  v. 
Union,  8cc.  5  Humph.  612;  Beckley  v.  Munson,  22  Conn.  299.  As  to  the 
distinction  between  a  mortgage  and  a  mere  executory  contract,  see  Coles  v. 
Perry,  7  Tex.  109.  Conveyance  by  A.  to  B.  by  absolute  deed.  B.  gave  back 
a  written  contract,  promising  to  sell  the  land  at  a  certain  time,  pay  two  notes 
with  the  proceeds,  and  the  balance  to  A.  Held,  that  B.  held  the  land  in 
trust,  and  it  was  his  duty  to  make  sale  at  the  time  specified,  and  appropriate 
the  proceeds  in  the  manner  stated ;  that  C,  who  was  a  surety  on  one  of  the 
notes,  although  he  might  not  have  known  of  the  trust  when  it  was  under- 
taken, was  yet  entitled  to  enforce  its  execution,  when  he  was  informed  of  it, 
if  it  had  been  previously  annulled  ;  and  that,  if  there  was  a  mortgage  upon 
the  estate  not  mentioned  in  the  contract,  but  known  to  B.  at  the  time  of  its 
execution,  he  might  pay  it  ofl",  and  deduct  the  amount  from  the  proceeds  of 
the  sale.     Pratt  v.  Thornton,  28  Maine,  355. 


en.   I.]  THE   LAW    OP   MORTGAGES.  2£» 

trustee,  authorizing  him,  if  the  judgment  were  not  paid  in  a 
certain  time,  to  sell  the  land.^     Or  a  covenant,  by  a  debtor, 
to  execute  to  the  creditor  a  mortgage  upon  the  debtor's  share 
under  his  father's  will,  whenever  a  division  should  be  made.^ 
So  A.,  a  debtor,  conveyed  in  fee  to  B.,  the  creditor,  taking  back 
a  written  promise  to  reconvey,  provided  A.  should  pay  B.  a 
certain  sum  on  a  certain  day,  with  interest  for  the  previous 
year,  and  all  other  claims.    A.  continued  in  possession.    The 
payment  not  being  made,  B.  leased  to  A.  for  a  year,  and 
afterwards  for  another  year.     A.'s  right  in  the  land  being 
sold   on  execution  to    C. ;  held,  C.  might  redeem  from  B.^ 
And  it  is  held  that  the  agreement  to  reconvey  may  be  made 
with  a  third  person.     Thus  A.  conveyed  to  the  defendant, 
who  gave  to  the  plaintiff  a  writing,  which  recited  that  he  "  had 
a  deed  for  (the  plaintiff's)  land,"  for  which  he  had-  paid  the 
purchase-money,  and  promised  to  convey  to  the  plaintiff  for 
her  repaying  the  purchase-money  within  two  years.     It  ap- 
peared, otherwise,  that  the  land  was  conveyed  as  security  for 
a  debt.     Held,  the  time  fixed  was  not  of  the  essence  of  the 
contract,  and  the  plaintiff  might  claim  a  reconveyance  and 
an  account,  on  payment  of  the  debt.'*    More  especially,  where 
the  deed  is   made  by  husband  and  wife,  the  bond  may  be 
given  to  the  wife  alone.^     So  the  defendant,  being  indebted 
to  the  wife  of  the  plaintiff,  executed  to  the  plaintiff  a  deed  in 
fee  of  certain  lands  ;  and  the  plaintiff,  by  a  separate  instru- 
ment, after  reciting  the  conveyance,  agreed,  that,  if  the  land 
should  sell  for  more  than  enough  to  pay  off  certain  incum- 
brances, and  the  consideration   mentioned  in   the   deed  — 
which  was  the  amount  of  the  plaintiff's   debt  —  and   the 
trouble  the  plaintiff  should  be  put  to  ;  he  would  pay  back  to 
the  defendant  all  the  overplus.     Held,  the  two  instruments 
together  constituted  a  mortgage.     Savage,  Ch .  J.,  said :  —  "It 
is  true,  there  was  no  right  of  redemption  of  the  land  itself 

ell  V.  Long,  20  Ohio,  464  ;  Robinson  v.  i  Comstock  v.  Stewart,  Walk.  Ch.  110. 

Farrelly,  16  Ala.  472  ;  Rogan  v.  Walk-  ^  Lynch  v.  Utica,  &c.  18  Wend.  236. 

er,  2  Chand.  (Wis.)  133  ;  Woodworth  «  Kintuer  v.  Blair,  4  Halst.  Ch.  485. 

V.  Guzman,  1  Cal.  203 ;  Chowning  v.  *  Mason  v.  Hearne,  1  Busb.  Eq.  88. 

Cox,  1  Rand.  306.  5  Mills  v.  Darling,  43  Maine,  465. 

VOL.  I.  8 


26  THE   LAW    OF   MORTGAGES.  [CH.   I. 

that  was  to  be  sold ;  but  the  avails  were  to  belong  to  the 
grantor,  after  paying  all  incumbrances  and  expenses."  He 
added,  that  the  agi-eement  to  return  the  overplus  money 
"  clearly  shows  that  it  was  not  the  intention  of  the  grantor 
to  part  with  any  more  of  his  interest  in  the  premises  con- 
veyed, than  sufficient  to  satisfy  the  mortgages,  and  the 
amount  due  the  plaintiff."  ^  (t)  So  one  who  takes  a  deed  of 
land  to  himself,  to  secure  the  purchase-money,  for  which  he 
becomes  liable  on  account  of  the  purchaser,  is  a  mortgagee.^ 
So,  a  year  after  the  date  of  a  deed,  the  grantee  gave  a  bond, 
reciting  that  the  deed  was  made  to  secure  a  loan,  and  condi- 
tioned to  convey  on  payment  on  a  certain  day.  Held,  a 
mortgage.^  So  A.  sells  and  conveys  to  B.,  agreeing  to  hold 
and  use  the  property  till  B.  shall  sell,  and  then  to  give  it  up 
in  as  good  repair  as  when  purchased,  upon  payment  of  a 
balance  of  the  purchase-money.  Held,  A.  hereby  became  a 
mortgagee,  and  might  foreclose  upon  non-payment  in  rea- 
sonable time.* 

38.  To  avoid  the  inconvenience  and  injustice  to  which  the 

1  Palmer  v.  Gurnsey,  7  Wend.  248.         ^  Montgomery  i;.  Chadwick,  7  Clarke, 

2  Fattison  v.  Horn,  1   Grant's   Gas.     (Iowa,)  114. 

(Penn.)  301.  *  Gibson  v.  Eller,  13  Ind.  124. 

(/)  In  Cooper  v.  Whitney,  3  Hill,  95,  Morse,  being  indebted  in  the 
amount  of  the  three  mortgages  to  St.  John,  Luquire,  and  Burlew,  conveyed 
in  fee  to  Burlew,  who,  by  a  separate  instrument  executed  at  the  same  time, 
agreed,  that,  if  he  could  sell  the  premises  within  a  reasonable  time  for  more 
than  enough  to  satisfy  the  three  debts  and  his  expenses,  he  would  pay  the 
excess  to  Morse.  It  was  held,  that,  although  the  transaction  was  not  in  the 
most  usual  form  of  a  mortgage,  it  had  all  the  essential  qualities  of  a  mort- 
gage, except  the  absence  of  an  express  condition,  that  the  deed  should  be- 
come void  on  payment  of  the  debts  which  it  was  made  to  secure  ;  that,  with- 
out such  condition,  ]\Iorse  might  not  perhaps  be  allowed  to  redeem,  and  that 
there  was  some  difficulty  in  treating  the  conveyance  as  a  technical  mort- 
gage, it  being  rather  a  trust ;  but  the  case  turned  on  other  points,  and  this 
(question  remained  undecided.  A  deed  which  provided,  that,  if  the  grantor 
can  witiiin  a  certain  time  "  dispose  of  the  land  conveyed  to  better  advan- 
tage," he  may  do  so,  paying  the  grantee  the  "  consideration-money "  men- 
tioned in  the  deed,  was  held  not  to  be  a  mortgage.  Stratton  v.  Sabin,  0 
Ham.  28^ 


CH.    I.]  THE   LAW    OF   MORTGAGES.  27 

mortgagor  might  be  exposed  by  an  absolute  forfeiture,  it  has 
been  usual  in  England  to  substitute  mortgages  for  a  long 
term  of  years  for  mortgages  in  fee.  (u)     And  this  practice  pre- 


(t()  Mr.  Coote  says,  in  some  instances  the  mortgage  used  to  be  effected 
by  a  demise  and  redemise ;  that  is,  the  mortgagor  demised  the  land  to  the 
mortgagee  for  a  long  term  of  years  at  a  peppercorn  rent,  and  then  the  mort- 
gagee redemised  them  at  a  pecuniary  rent,  which  covered  the  interest  of 
the  money  lent ;  and  there  was  a  condition  in  the  original  demise,  that,  on 
payment  of  the  mortgage  debt  and  Interest  by  a  given  day,  the  original  term 
should  be  at  an  end ;  upon  which  the  derivative  term  would  also  cease. 
Coote,  156,  157. 

A  mortgage  had  been  made  for  the  term  of  five  hundred  years,  contain- 
ing a  covenant  by  the  mortgagor  to  convey  the  fee  when  required.  Claim, 
for  foreclosure  of  the  equity  of  redemption,  and  to  have  the  freehold  reversion 
and  inheritance  conveyed  to  the  mortgagor.  The  registrar  had  refused  to  file 
the  claim  without  leave.  Leave  given.  Phipps  v.  Budd,  2  Eng.  Law  &  Eq. 
137.     See  Propert's,  &c.  19,  604, 

There  may  also  be  a  mortgage  of  a  leasehold  interest  itself.  In  Missouri, 
mortgages  of  leaseholds  for  more  than  twenty  years  are  treated  like  mort- 
gages of  estates  in  fee.  Misso.  St.  410.  In  Arkansas,  the  mortgagee  of  a 
leasehold  may  obtain  possession  of  the  premises  after  the  lessee  has  been 
ejected,  by  payment  of  the  debt.     Ark.  L.  680. 

Where  an  assignee  of  a  term  of  years,  having  no  other  right  or  interest 
in  the  lands  demised,  mortgages  such  lands,  without  reciting  the  lease,  the 
term  of  years  passes  to  the  mortgagee,  and  a  purchaser  at  a  sale  under  a 
foreclosure  of  the  mortgage  becomes  the  assignee  of  the  lease.  Kearney  v. 
Post,  1  Sandf.  105. 

Mortgage  for  a  term  of  years,  in  1822,  of  land  leased  to  the  mortgagor  in 
1821.  In  1834,  the  mortgage  was  paid  off,  and  the  mortgagee  and  the  owner 
of  the  equity  conveyed  all  their  interest  to  the  party  under  whom  the  plain- 
tiff claims.  Held,  the  plaintiff  was  a  person  claiming  under  a  mortgage 
within  St.  7  Wm.  4,  and  1  Vict.  c.  28,  and  therefore  might  bring  ejectment 
within  twenty  years  after  the  payment,  though  no  rent  had  been  paid  the 
mortgagor  within  twenty  years,  nor  his  title.acknowledged  by  the  tenant  in 
possession.     Budeley  v.  Massey,  6  Eng.  Law  &  Eq.  356. 

Where  a  mortgage  of  leasehold  premises  reserves  a  right  to  the  mort- 
gagor to  retain  possession  till  breach  of  condition,  and  he  holds  over,  the  law 
will  not  imply  an  assumpsit  to  pay  rent  to  the  mortgagee  during  the  time  of 
holding  over,  and  previous  to  an  entry  by  the  mortgagee.  If  after  breach  of 
condition  the  mortgagor  tenders  performance,  and  the  mortgagee  brings 
assumpsit  for  rent  alleged  to  have  accrued  during  the  holding  over,  the  title 


28  THE   LAW    OF   MORTGAGES.  [CH.    I. 

vailed  very  generally,  until  the  courts  of  equity  interfered  for 
the  redemption  of  mortgages  in  fee,  upon  the  principles  here- 
after stated. 

39.  Although  the  legal  estate  is  absolute  at  law  in  the 
mortgagee  after  forfeiture,  yet  the  courts  of  equity,  after  their 
jurisdiction  became  well  established  in  England,  without  any 
legislative  enactment,  thought  that  conscience  and  equity 
required  them  to  break  in  upon  the  common  law,  and  to 
grant  relief  by  permitting  the  mortgagor  at  any  reasonable 
time  to  redeem.  They  held  that  the  power  of  redemption 
was  an  equitable  right,  inherent  in  the  land,  and  binding  all 
persons,  whether  claiming  in  the  per^  that  is,  by  the  act  of 
the  mortgagee,  as  tenant  in  dower,  by  statute  staple,  elegit, 
&c. ;  or  in  the  post,  that  is,  by  the  act  of  the  law,  as  tenant 
by  the  curtesy,  and  the  lord  by  escheat,^  Chancery  viewed 
the  condition  of  a  mortgage  as  a  penalty,  or  forfeiture,  against 
which  equity  ought  to  relieve  ;  [v)   even  though  the  deed 

1  Parsons  v.  Welles,  17  Mass.  422,  423  ;  Wilkins  v.  French,  20  Maine,  116. 


to  the  premises  cannot  be  tried  in  this  action ;  and  if  a  third  person,  by 
permission  of  the  mortgagor,  entered  and  occupied  before,  and  retained  pos- 
session after,  condition  broken  ;  the  mortgagee,  who  had  never  entered, 
cannot  maintain  trespass  quare  clausum  against  him.  Mayo  v.  Fletcher, 
14  Pick.  525.  See  Smith  v.  Blaisdell,  17  Verm.  199;  Johnson  v.  Dopkins, 
3  Cal.  391.  In  Ohio,  a  mortgagor,  who  was  a  tenant  in  possession  of  a  lease- 
hold estate  for  the  term  of  ten  years,  —  the  instrument  under  which  he  held 
possession  not  being  witnessed  or  acknowledged,  —  has  such  an  estate  as 
requires  a  mortgage  of  it  to  be  executed  in  conformity  with  the  act  of 
Feb.  22, 1831.  Paine  v.  Mason,  7  Ohio,  (N.  S.)  198.  A  mortgage  of  a  lease- 
hold estate  described  by  metes  and  bounds  is  only  an  assignment  of  the 
rents,  and,  as  a  mortgage,  in  Vermont,  does  not  confer  a  power  of  sale,  only 
the  annual  rent  could  be  received  by  the  mortgagee,  and  his  debt  might  be 
enforced  upon  the  other  securities  in  the  mortgage.  Hulet  i;.  Soullard,  26 
Vt.  295.  In  California,  a"  lease,  recorded  as  such,  with  a  stipulation  that  the 
building  erected  by  the  lessee  "  is  mortgaged  as  security  "  for  rent,  is  a  valid 
mortgage.     Barroilhet  v.  Battelle,  7  Cal.  450. 

{y)  The  jurisdiction  of  equity  in  case  of  mortgages  has  also  been  ascribed 
to  the  head  of  accident ;  but  more  properly,  perhaps,  to  that  of  trust,  arising 
from  the  nature  of  the  contract,  as  a  security.     2  Story,  Eq.  §  1014,  n.     "  A 


CH.   I.]  THE    LAW   OF   MORTGAGES.  29 

expressly  declared,  that,  unless  the  debt  were  paid  by  a  cer- 
tain day,  the  estate  of  the  mortgagee  should  be  absolute.^ 

40.  Mr.  Powell  ^  says  :  —  "  When  the  stern  and  rigid  se- 
verities of  that  (the  feudal)  tenure  yielded  to  the  importuni- 
ties of  a  more  refined  age,  and  the  benefits  of  commerce 
were  found  to  keep  pace  with  the  extension  of  a  free  aliena- 
tion, the  courts  of  equity  moulded  contracts  respecting  real 
property  into  the  shape  most  convenient  for  the  purposes  of 
society.  In  adjusting  the  various  rules  respecting  it,  many 
contests  arose  between  the  courts  of  Law  and  Equity  ;  the 
former  ever  displaying  a  strong  inclination  to  adhere  to  the 
old  rigids  maxims  introduced  for  the  purpose  of  preserving 
real  property' unalienable,  whilst  the  latter  were  disposed  to 

1  2  Greenl.  Cruise,  78  ;  Chapman  v.  -1  Pow.  108. 

Turner,  1  Call,  252;  Sampson  v.  Pat- 
tison,  1  Hare,  536. 


mortgage  is  in  many  respects  a  creature  of  equity."  Penniman  v.  Hollis, 
13  Mass.  431.  "  Courts  of  equity  have  raised  up  a  system  of  their  own  upon 
the  subject  of  mortgages,  in  derogation  of  the  doctrines  of  the  common  law." 
Montgomery  v.  Bruere,  1  South.  267.  Notwithstanding  the  peculiar  favor 
with  which  the  rights  of  mortgagors  are  regarded  by  courts  of  equity,  those 
of  mortgagees  are  also  protected,  so  far  as  the  claims  of  justice  and  good  faith 
demand.  Thus,  where  a  defendant  in  a  foreclosure  suit  prayed  for  indul- 
gence, on  the  ground  that,  for  a  part  of  the  time,  since  a  master's  report  had 
been  made  in  the  case,  he  had  been  in  prison,  and  the  rest  of  the  time  forced 
to  leave  the  kingdom ;  the  Lord  Chancellor  said  :  "  This  is  thrown  in  to 
move  compassion ;  for  all  persons  in  the  defendant's  case,  who  are  incum- 
bered, are  liable  to  such  accidents ;  and  if  I  was  to  give  any  weight  to  it,  a 
creditor  would  lie  under  very  great  hardships,  and  the  saying  inverted,  for 
a  lender  would  then  become  a  slave  to  the  borrower."  Gould  v.  Tancred, 
2  Atk.  534.  In  reference  to  the  somewhat  undefined  powers  and  duties  of 
courts  of  law  and  equity,  with  regard  to  mortgages,  Judge  Story  remarks  : 
"  A  judge  at  law  sometimes  deals  with  it  in  its  most  enlarged  and  liberal 
character,  stripped  of  its  technical  and  legal  habiliments ;  and  a  judge  in 
equity  is  sometimes  obliged,  in  the  administration  of  his  duties,  to  follow  out 
the  doctrine  of  law,  and  to  contemplate  it  with  much  of  its  original  and 
ancient  strictness."  Gray  v.  Jenks,  3  Mas.  521,  522.  Where  a  mortgage 
has  been  recovered  upon  at  law,  though  there  be  a  defect  in  its  execution, 
the  defect  will  not  be  regarded  in  equity.  Dust  v.  Courod,  5  Munf.  411. 
3* 


30  THE   LAW   OF  MORTGAGES.  [CH.   I. 

consider  the  essential  nature  of  contracts,  and  to  give  them 
operation  according  to  the  intention  of  the  parties  stipulating. 
In  the  end  they  prevailed,  and  an  equitable  jurisdiction  was 
gradually  introduced,  which,  by  correcting  without  enfeebling 
the  severe  rules  of  the  Common  Law,  laid  the  foundation  of 
a  system  of  jurisprudence,  admirably  adapted  to  the  free 
enjoyment  of  property."  (w) 

41.  Chancellor  Kent  remarks :  —  "  The  case  of  mortgages 
is  one  of  the  most  splendid  instances  in  the  history  of  our 
jurisprudence,  of  the  triumph  of  equitable  principles  over 
technical  rules,  and  of  the  homage  which  those  principles 
have  received  by  their  adoption  in  the  courts  of  law."  ^  And 
Judge  Story  truly  says,^  the  doctrines  of  equity  are  "  founded 
upon  principles  of  justice  so  universal,  as  equally  to  commend 
themselves  to  the  approbation  of  a  Roman  praetor,  and  of  a 
modern  judge,  administering  the  law  of  Continental  Europe, 
ex  cequo  et  bonoP 

42.  Courts  of  equity,  however,  allowed  the  mortgagee  to 
call  upon  the  mortgagor  to  redeem  presently^  or  in  default 
thereof  to  be  forever  foreclosed.  And  they  generally  refused 
to  interfere  in  favor  of  the  mortgagor,  after  twenty  years' 
possession  by  the  mortgagee.^ 

43.  Mr.  Cruise  remarks  :  *  —  "  This  right  acquired  the  name 
of  an  equity  of  redemption ;  but  it  is  not  ascertained  when  it 
was  first  allowed.  Lord  Hale  is  reported  to  have  said,  that, 
in  14  Rich.  2,  the  parliament  refused  to  admit  of  an  equity 

1  4  Kent,  158.  ^  Parsons  v.  Welles,  17  Mass.  423. 

2  2  Story,  Eq.  §  1029.  *  2  Cruise,  62. 


(?/;)  In  connection  with  the  estate  of  a  mortgagor,  known  as  an  equity  of 
redemption,  it  may  be  remarked,  that,  in  general,  the  same  name  is  applied 
to  the  mortgagor's  interest,  before  forfeiture.  Technically,  this  is  inaccurate, 
because  such  interest  is  a  legal:,  not  an  equitable  one.  In  the  statute  law  of 
North  Carolina  and  Florida,  the  distinction  is  nicely  observed ;  the  one 
interest  being  termed  a  legal  right  of  redemption,  the  other  an  equity  of 
redemption.  1  N.  C.  Rev.  St.  2G6  ;  Thomp.  Dig.  355.  See  State  v.  Laval, 
4  M'Cord,  340, 


CH.   I.]  THE    LAW   OF   MORTGAGES.  31 

of  redemption,  (x)  This  appears  to  be  a  mistake  ;  for  in  the 
case  alluded  to  by  Lord  Hale,  and  of  which  he  has  stated  a 
part  in  his  History  of  the  Common  Law/  the  mortgagor 
asserted  that  he  had  paid  the  money,  and  prayed  to  have  his 
lands  again ;  nor  did  the  idea  of  an  equity  of  redemption 
exist  for  some  centuries  after  ;  for  although  Tothill  has  men- 
tioned a  case  in  37  Eliz.,  where  a  mortgagor  had  a  decree  in 
Chancery  for  a  reconveyance  of  lands  mortgaged,  yet  no 
mention  is  made  by  Lord  Coke  of  an  equity  of  redemption ; 
from  which  it  may  be  presumed,  that  it  was  not  then  gener- 
ally known.  It  is,  however,  probable,  that  this  doctrine  was 
introduced  in  the  reign  of  James  I.,  when  the  Court  of  Chan- 
cery had  established  its  equitable  jurisdiction.  And  in  the 
first  year  of  Charles  I.,  there  is  a  case  in  which  this  right  is 
supported,  as  a  thing  of  course." 

44.  It  was  in  reference  to  this  interference  of  a  court  of 
equity  with  mortgages,  that  Lord  Hale  made  the  remark  so 
often  quoted,  that,  "  by  the  growth  of  equity  on  equity,  the 
heart  of  the  Common  Law  is  eaten  out,  and  legal  settle- 
ments are  destroyed."  ^ 

45.  Chancellor  Kent  says  :^  —  "  The  English  law  of  mort- 
gages appears  to  have  been  borrowed,  in  a  great  degree,  from 
the  Civil  Law ;  and  the  Roman  hypotheca  corresponded  very 
closely  with  the  description  of  a  mortgage  in  our  law.  The 
land  was  retained  by  the  debtor,  and  the  creditor  was  entitled 
to  his  actio  hypothecaria,  to  obtain  possession  of  the  pledge, 
when  the  debtor  was  in  default ;  and  the  debtor  had  his 
action  to  regain  possession  when  the  debt  was  paid  or  satis- 

1  Chap.  3.  ^4  Comm.  136 ;  Chapman  v.  Tur- 

2  Roscarrick  v.  Barton,  1  Ch.  Cas.     ner,  1  Call,  252. 
219. 


(x)  Lord  Hale  remarks,  (Roscarrick  v.  Barton,  1  Cha.  Cas.  219,)  that, 
in  the  fourteenth  year  of  Richard  II.,  parliament  would  not  admit  of  an 
equity  of  redemption.  But  it  is  said  not  long  after  to  have  struggled  into 
existence.  About  two  hundred  years  ago,  Chief  Baron  Hale  called  an 
equity  of  redemption  an  ancient  right,     Hardres,  469  ;  Co.  Lit.  204,  b,  n.  1. 


32  THE   LAW    OF   MORTGAGES.  [CH.  I. 

fied  out  of  the  profits,  and  he  might  redeem  at  any  time 
before  a  sale^  {y) 

On  the  other  hand,  Mr.  Butler,  whose  authority  upon  such 
a  point  is  entitled  to  great  respect,  was  of  opinion,  that  mort- 
gages were  founded  on  the  Common  Law  doctrine  of  con- 
ditions.^ Judge  Story  remarks,^  that,  whatever  truth  there 
may  be  in  this  remark,  as  to  the  origin  of  mortgages  of  land 
in  the  English  law,  there  is  no  doubt  that  the  notion  of  the 
equity  of  redemption  was  derived  from  the  Roman  law,  and 
is  purely  the  creature  of  courts  of  equity. 

So  Mr.  Coote  remarks,^  that  the  Roman  hypotheca  closely 
corresponds  with  our  idea  of  a  mortgage.  The  subject  in 
pledge  was  retained  by  the  debtor,  and  the  creditor  was,  in 
default  of  payment,  driven  to  his  actio  hypothecaria  to  obtain 
possession,  and  at  any  time  before  sentence  the  debtor  might 
redeem.  By  that  law,  the  debt  was  the  principal,  the  secur- 
ity an  incident,  and  when  the  one  ceased,  the  other  ceased 
also ;  and,  until  sentence,  the  ownership  of  the  debtor  was 
not  displaced,  {z) 

1  2  Story,  Eq.  §  1005.  2  jbid.  3  Coote,  40. 


(y)  A  French  hypotheque  of  land,  in  which  the  conveying  words  are 
oblige,  engage^  aliene,  affecte,  et  hypotheque,  is  equivalent  to  a  mortgage 
under  the  law  of  Missouri,  and  is  embraced  in  the  provisions  of  the  terri- 
torial act  of  October  20,  1807,  concerning  mortgages.  McNair  v.  Lott,  25 
Mis.  182. 

(z)  Mr.  Powell  remarks,  in  reference  to  the  origin  of  mortgages,  that 
mortgages  are  supposed  by  some  to  have  originated  with  the  Jews.  1  Pow. 
1  ;  Cunoeus,  11,  2,  3,  4  ;  2  Anc.  Un.  His.  130,  131.  In  the  year  of  jubilee, 
all  lands  reverted  to  the  original  owner.  Hence,  at  any  time  after  a  con- 
veyance, the  grantor  might  redeem,  repaying  the  value  from  the  time  of 
redemption  to  the  jubilee. 

It  may  be  added,  that  among  the  Jews,  as  in  later  days,  mortgages  seem 
to  have  been  most  in  use  in  times  of  general  distress.  Thus,  it  is  recorded 
in  the  book  of  Nehemiah,  (ch.  v.  1,  3,  4,  7,)  in  reference  to  those  who  had 
returned  from  the  captivity  to  Jerusalem :  "  And  there  was  a  great  cry  of 
the  people  and  of  their  wives  against  their  brethren,  the  Jews.  .  .  We  have 
mortgaged  our  lands,  vineyards,  and  houses,  that  we  might  buy  corn,  because 
of  the  dearth.  .  .  We  have  borrowed  money  for  the  king's  tribute,  and  that 


CH  I.]  THE   LAW   OF   MOllTGAGES.  33 

upon  our  lands  and  vineyards.  .  .  Then  I  .  •  rebuked  the  nobles  and  the 
rulers,  and  said  unto  them,  '  Ye  exact  usury,  every  one  of  his  brother.' " 

Mr.  Powell  further  remarks,  in  reference  to  the  antiquity  of  mortgages  in 
England,  that  William,  Earl  of  Poictiers,  mortgaged  the  provinces  of  Gui- 
enne  and  Poictou  to  William  Rufus,  King  of  England.  1  Pow.  3  ;  1  Hume, 
270  ;  4,  80. 


34  THE   LAW   OF   MORTGAGES.  [CH.  II. 


CHAPTER  11. 

DEFEASANCES. 

1.  Xature  and  history  of  defeasances.'  9.  Form,  and  mode  of  execution,  of 
5.  Deed  and  defeasance  must  be  con- ,  a  defeasance  ;  whether  a  seal  is  neces- 

current ;  whether  the  date  of  both  must,  sary. 

be  the  same.  |     10.  Hefeasances  in  the  United  States. 

7.  Language  of  a  defeasance.  I     11.  Recording  of  defeasances. 

1.  A  MORTGAGE  may  be  made  by  an  absolute  deed  and  a 
defeasance  [a)  back  to  the  grantor,  instead  of  a  single  con- 
ditional deed.  In  England,  this  form  of  mortgage  has  been 
at  times  discountenanced  by  the  judges,  as  liable  to  accidents 
and  abuse,  indicative  of  fraud,  and  injurious  to  the  mort- 
gagor, because  the  defeasance  might  be  lost,  and  thus  the 
grantee's  title  made  absolute.^     It  would  appear,  however,  to 

1  Cotterell  v.  Purchase,  Forr.  63.  v.  Dunham,  2  Jolins.  Cha.  191 ;  Man- 
See  Newcomb  v.  Bonham,  1  Vern.  7 ;  ufacturers,  &c.  v.  Bank,  &c.  7  W.  &  S. 
Jaques  v.  Weeks,  7  "Watts,  269  ;  Dey    335 ;  Scott  v.  McFarland,  13  Mass.  309 ; 

(a)  Even  a  contract  to  convey,  in  consideration  of  a  certain  sum,  with  a 
bond  to  reconvey  upon  repayment,  is  held  a  mortgage.  Harrison  v.  Lemon, 
3  Blackf.  51.  Whether  a  defeasance  can  be  treated  by  the  grantor  as  a 
personal  obligation,  and  a  suit  maintained  upon  it  as  such,  at  his  election,  see 
Watkins  v.  Gregory,  6  Blackf.  113 ;  Treat  v.  Strickland,  10  Shepl.  234.  In 
an  early  case  in  Massachusetts,  (Holbrook  v.  Finney,  4  Mass.  569,)  Parsons, 
C.  J.,  says :  "  These  two  instruments  must  therefore  be  considered  as  parts 
of  one  and  the  same  contract,  in  the  same  manner  as  a  deed  of  defeasance 
forms  with  the  deed  to  be  defeated  but  one  contract,  though  engrossed  on 
several  sheets." 

Debt  on  bond.  The  bond  was  made  by  the  defendant  to  the  plaintiff,  in 
connection  with  a  deed  of  land  from  the  plaintiff  to  him,  conditioned  to  re- 
convey  to  him,  his  heirs,  &c.,  upon  being  indemnified  from  a  note  on  which 
the  defendant  was  a  surety,  by  payment  thereof  on  or  before  a  certain  day. 
It  seems,  the  transaction  constitutes  a  mortgage,  and  the  plaintiff,  having 
conveyed  the  land  to  a  third  person,  though  after  paying  the  note  and  de- 
manding a  deed  from  the  defendant,  thereby  ceased  to  have  any  interest  in 
the  bond,  which  passed,  as  a  defeasance,  with  the  estate.  Hogins  v.  Arnold, 
15  Pick.  259. 


CH.  II.]  DEFEASANCES.  35 

have  been  an  ancient  mode  of  mortgaging.  Thus,  in  the 
case  of  Jackson  v.  Vernon,^  decided  in  1789,  Heath,  J.,  speaks 
of  the  instrument  then  under  consideration,  as  "  not  in  the 
modern  form,  but  like  an  ancient  mortgage  by  deed  abso- 
lute, with  another  deed  of  defeasance." 

2.  Mr.  Coote  says,  in  consequence  of  the  discouragement 
it  received,  this  mode  of  mortgage  has  become  almost  obso- 
lete.2 

3.  In  Cotterell  v.  Purchase,^  a  leading  case  on  this  subject, 
the  plaintiff,  in  1708,  by  lease  and  release  conveyed  to  the 
defendant,  with  a  covenant,  that  she  (the  plaintiff)  would 
not  agree  to  any  division  or  partition  of  the  estate  (she  being 
a  joint  tenant)  without  license,  &c.,  of  the  defendant.  The 
joint  owner  with  the  plaintiff  was  at  the  time  in  possession 
of  the  whole  estate,  and  so  continued  till  1710,  when  the 
defendant  turned  her  out  by  ejectment  from  a  moiety  of  the 
premises,  and  enjoyed  it  quietly  till  1726.  The  plaintiff  then 
files  a  bill  to  redeem,  and  the  defendant  claims  as  an  abso- 
lute purchaser.  It  appeared,  that  the  plaintiff  had  made  a 
previous  conveyance  of  the  same  premises,  absolute  at  law, 
but  intended  by  the  parties  as  a  mortgage ;  that  this  deed 
was  cancelled  upon  the  making  of  the  second  one,  and  in 
consideration  of  a  further  sum,  making  the  whole  debt  and 
interest,  the  new  conveyance  made.  The  Lord  Chancellor, 
in  dismissing  the  bill,  remarked:*  —  "  The  case  is  something 
dark.  The  first  deed  is  admitted  to  be  a  mortgage  ;  and  the 
second  is  made  in  the  same  manner,  excepting  an  odd  sort 
of  a  covenant,  which  is  the  darkest  part  of  the  case  ;  for,  to 
suppose  that  it  is  an  absolute  conveyance,  and  to  take  a 
covenant  from  one  who  had  nothing  to  do  with  the  estate, 
makes  both  the  parties  and  covenants  vain  and  ridiculous. 
But  then  it  will  be  equally  vain  and  ridiculous,  if  you  sup- 
pose the  deed  not  an  absolute  conveyance."  After  corn- 
Taylor  V.  Weld,  5,  109 ;  Breckenridge  ^  1  H.  Bl.  119. 

V.  Auld,  1  Rob.  (Va.)  148  ;  Van  Wag-  ^  Coote,  156. 

ner  v.  Van  Wagner,  8  Halst.  Ch.  27 ;  '^  Ca.  Temp.  Talb.  61. 

Shaw  V.  Erskine,  43  Maine,  371;  Cor-  *  Ibid.  63,  64. 

nell  V.  Pierson,  4  Halst.  Ch.  478. 


36  THE   LAW   OF   MORTGAGES.  [CH.  II. 

meriting  upon  the  circumstances  of  the  case,  as  bearing  upon 
this  question,  he  proceeds  to  say :  "  Her  long  acquiescence 
under  the  defendant's  possession  is  to  me  a  strong  evidence 
that  it  was  to  be  an  absolute  conveyance,  otherwise  the 
length  of  time  would  not  have  signified  ;  for,  they  who  take 
a  conveyance  of  an  estate,  as  a  mortgage,  without  any  de- 
feasance, are  guilty  of  a  fraud ;  and  no  length  of  time  will 
bar  a  fraud.  In  the  Northern  Parts,  it  is  the  custom  in  draw- 
ing mortgages  to  make  an  absolute  deed,  with  a  defeasance 
separate  from  it ;  but  I  think  it  a  wrong  way ;  and  to  me  it 
will  always  appear  with  a  face  of  fraud ;  for  the  defeasance 
may  be  lost,  and  then  an  absolute  conveyance  is  set  up.  I 
would  discourage  the  practice  as  much  as  possible." 

4.  An  instrument  of  defeasance  may  be  construed  to  create 
a  mortgage,  although  the  parties  have  acquiesced,  for  a  long 
time  after  the  period  of  payment  stipulated  therein,  in  the 
conveyance  of  the  property ;  more  especially,  if  it  is  a  rever- 
sionary interest.  Thus  the  plaintiff,  being  indebted  to  the 
defendant,  made  an  absolute  assignment  of  a  reversion,  tak- 
ing back  a  memorandum  that  the  defendant  would  reconvey, 
upon  repayment,  with  interest,  in  six  months ;  the  plaintiff 
paying  part  of  the  costs.  Nothing  further  was  done  for 
eighteen  years.     Held,  a  mortgage.^ 

5.  In  general,  the  defeasance  and  the  deed  must  be  parts 
of  one  transaction  or  assurance,  and  made  by  the  same  spe- 
cies of  assurance,  to  constitute  a  mortgage.  A  conveyance 
must  be  a  mortgage,  if  at  all,  in  principio,  or  at  the  time  of 
its  inception ;  it  never  can  become  one  by  a  subsequent  act. 
If  there  was  ever  a  moment,  when  it  could  be  considered 
only  as  an  absolute  estate,  it  must  ever  remain  so.  And  a 
subsequent  agreement  to  make  an  absolute  deed  a  mortgage, 
without  a  new  consideration,  has  been  held  void,  as  nudum 
pactum.  The  mere  date  of  the  defeasance,  however,  may  be 
subsequent  to  that  of  the  deed.^     That  the  deed  and  defea- 

1  Waters  v.  Mynn,  14  Jur.  341.  481 ;  Albany's  case,  1  Co.  113  ;  Reiten- 

'^  Bryan   v.    Cowart,    21    Ala.    92  ;  baugh  v.  Ludwick,  31  Penn.  131  ;  Ca- 

Com.   Dig.    Ciiancery,  4,   A  3 ;    Bro.  pen  v.  Kichardson,  7  Gray,  369  ;  Lund 

Defeasance,  5,  12  ;  Dyer,  316  ;  2  Saund.  v.  Lund,  1  N.  II.  41 ;  Harden  i'.  Bab- 


CH.  II.]  DEFEASANCES.  37 

sance  were  executed  on  different  days,  cannot  be  inferred  from 
tiieir  having  been  witnessed  by  different  persons,  more  espe- 
cially if  they  bear  the  same  date,  and  evidence  is  offered  tend- 
ing to  show  that  they  were  executed  on  the  same  day.^  (b) 

6.  The  general  principle  upon  this  subject  has  been  thus 
expressed  in  Massachusetts  :  "  When  the  deed  was  originally 
given  absolute  in  its  form,  but  with  an  agreement  made  in 
good  faith,  that  a  defeasance  should  be  executed  on  request ; 
when  such  defeasance  was  executed  in  good  faith,  it  related 
back  to  the  deed,  and  made  it  a  mortgage.  Had  the  estate 
been  attached  as  the  grantee's,  in  the  mean  time,  it  might  be 
attended  with  difficulties,  but  they  do  not  now  arise.  Where 
the  delay  of  the  defeasance  does  not  affect  third  persons,  the 
defeasance,  when  made,  is  good  between  the  parties."  ^ 
And  where  a  deed  was  made  without  the  knowledge  of  the 
grantee,  and  placed  on  record,  and  in  the  course  of  a  month 
afterwards  the  grantor  informed  the  grantee  of  it,  and  re- 
quested him  to  get  the  deed  from  the  registry,  which  he 
accordingly  soon  did,  and  thereupon  gave  back  an  obligation 
to  reconvey  vipon  being  indemnified  for  certain  liabilities  ; 
this  was  held  a  good  defeasance.^ 

So  in  Pennsylvania,*  Huston,  J.,  makes  a  distinction  be- 
tween the  case  of  a  deed  and  agreement  of  separate  and  dis- 

cock,  2  Met.  103 ;  Harrison  v.  Trus-  i  Taylor  v.  Weld,  5  Mass.  116, 117. 

tees,  &c.  12  Mass.  463;  Kelly  i;.Thomp-  ^  Per    Shaw,    C.    J.,    Lovering    v. 

son,  7  Watts,  401 ;  Freeman  v.  Bald-  Fogg,    18  Pick.   543.       See   Scott  v. 

win,   13  Ala.  246;  Erskine  v.  Town-  Henry,  8  Eng.  112. 

send,  2  Mass.  495  ;  Bodwell  v.  Web-  ^  Harrison  v.  Trustees,  &c.  12  Mass. 

ster,  13  Pick.  413 ;  Bryan  v.  Cowart,  456. 

21  Ala.  92.  *  Kerr  v.  Gilmore,  6  Watts,  405. 


(6)  In  Maine,  they  must  be  executed  at  the  same  time,  or  be  parts  of  the 
same  transaction.  Me.  Rev.  St.  ch.  89,  §  1 ;  43  Maine,  371.  See  2  Greenl. 
Cruise,  81,  n.  In  that  State,  it  is  held,  that,  in  case  of  conveyance  by  hus- 
band and  wife,  the  bond  may  be  given  to  the  wife  alone.  Mills  v.  Darling, 
43  Maine,  565.  The  distinction  is  taken  in  Pennsylvania,  that,  if  a  defea- 
sance be  simultaneous  with  the  deed,  the  Court  must,  as  matter  of  law,  hold 
the  transaction  a  mortgage  ;  but  if  subsequent,  it  is  a  question  for  the  jury 
whetlier  a  sale  or  a  t^ecurity  was  intended.  Wilson  r.  Shoenberger,  31  Penn. 
295  ;  Keitenbaugh  v.  Ludwick,  lb.  131. 

VOL.    I.  4 


38  THE   LAAV    OP   MORTGAGES.  [CH.  II. 

tinct  dates,  and  arising  out  of  contracts  really  separate,  and 
one,  where  they  are  of  the  same  date,  and  executed  at  the 
same  meeting  of  the  parties,  before  the  same  witnesses,  and 
therefore  in  point  of  law  one  transaction ;  holding  that  the 
latter  must  be  a  mortgage,  whereas  the  former  may  be  a  sale, 
if  there  are  not  circumstances  showing  it  to  be  a  mortgage. 
And  in  the  same  State,'  Sergeant,  J.,  remarked,  with  refer- 
ence to  an  instrument  of  defeasance  bearing  date  after  the 
deed  :  —  "  It  is  true,  dates  and  papers  of  this  kind  may  be  af- 
fected, if  it  can  be  shown  that  the  whole  was  merely  a  scheme 
or  contrivance  ;  that  in  reality  it  was  a  loan  merely,  and  that 
the  defeasance  was  understood  and  agreed  on  in  the  original 
arrangement,'  and  the  discrepancy  of  dates  was  merely  acci- 
dental, or  with  a  sinister  design."  So,  in  New  York,  in 
regard  to  the  proof  and  the  burden  of  proof  upon  this  subject, 
Chancellor  Walworth  says  :  ^  —  "The  complainant  having 
given  an  absolute  conveyance,  and  this  writing  not  being  in 
terms  a  defeasance  thereof,  the  onus  of  showing  that  both 
were  executed  at  the  same  time,  and  in  pursuance  of  the 
same  agreement,  is  unquestionably  thrown  upon  the  com- 
plainant. And  having  waited  twelve  years  before  he  filed 
his  bill,  and  until  Gridley,  who  drew  the  writing,  and  who 
probably  was  the  only  person  who  could  have  proved  the 
circumstances  under  which  it  was  given,  was  dead,  he  should 
now  be  held  to  strict  proof." 

7.  The  precise  language  of  the  defeasance  is  immaterial. 
The  more  usual  form  is,  that  the  deed  shall  be  void  on  pay- 
ment of  the  debt  within  or  at  a  specified  period.  But  this  is 
not  absolutely  necessary,  and  a  provision,  that  upon  such 
payment  the  grantee  shall  rcconvey,  is  equally  effectual, 
more  especially  if  the  condition  expressly  recites,  that  the 
conveyance  is  made  as  a  security  for  money  due.^  (See  ch.  1, 
s.  36.)  So  a  conveyance  of  land  for  a  certain  consideration, 
with  a  covenant  by  the  grantee  to  reconvey  on  payment  of 

1  Kelly  V.  Thompson,  7  Watts,  404.     McGan   v.    Marsliall,   ib.    121 ;   Ham- 

2  Holmes  f.  Grant,  8  Paige,  255,  256.     monds  v.  Hopkins,  3  Yerg.  525;  Bay- 
^  Erskine  i>.  Townsend,  2Mass.497 ;     ley  v.  Bailey,  5  Gray,  505;  4  Alien, 

Webb  V.  Patterson,  7   Humph.   431 ;     417  ;  Weed  v.  Stevenson,  1  Clark,  166. 


CH.  II.]  DEFEASANCES.  39 

that  sum  within  one  year,  constitutes  a  mortgage,  notwith- 
standing parol  evidence  of  the  parties'  intention  to  the  con- 
trary.^ So  the  condition  of  defeasance  need  not  be  inserted 
in  the  body  of  the  deed ;  but  may  be  added  underneath.^  And 
a  condition  on  the  back  of  an  absolute  deed,  though  without 
date,  signature,  or  seal,  has  been  held  to  constitute  a  defea- 
sance ;  more  especially  as  the  demandant  counted  on  his 
seisin  in  fee  and  mortgage?  So  a  sealed  agreement  to  re- 
convey,  upon  repayment  of  the  price  within  a  certain  time, 
indorsed  on  the  agreement,  is  held  to  constitute  a  mortgage, 
and  parol  evidence  not  received  to  the  contrary.^  So,  where 
a  deed  upon  its  face  purported  to  be  an  absolute  conveyance, 
but  upon  its  back  contained  a  condition  in  usual  form  for 
the  payment  of  a  note ;  it  was  held,  that  at  law  as  well  as 
in  equity  the  instrument  was  a  mortgage,  the  indorsement 
showing  the  purpose  for  which  the  deed  was  delivered,  as 
collateral  security  for  the  payment  of  money.^ 

So  an  agreement  indorsed  upon  an  absolute  deed,  that  the 
vendee  should  execute  certain  notes  for  the  purchase-money, 
with  security,  and  that  the  agreement  should  "  act  as  a  lien" 
upon  the  land,  until  the  notes  should  be  satisfied  in  full ; 
signed,  sealed,  and  aknowledged  by  the  vendor  and  vendee, 
and  recorded  with  the  deed  ;  is  to  be  regarded  as  a  part  of 
the  deed,  and  operates  as  a  lien  upon  the  land.^ 

So,  in  a  writ  of  entry,  the  tenant  avers,  that,  at  the  time 
of  the  conveyance  under  which  the  demandant  claims,  the 
demandant  executed  to  him  a  deed  of  defeasance,  contain- 
ing an  agreement  of  the  parties,  as  follows  :  The  tenant,  in 
consideration  of  $2,000  to  be  paid  him  on  the  tenant's  con- 
veying to  the  demandant  in  fee,  agrees  to  execute  such  con- 
veyance ;  the  deriftndant  agrees  to  pay  him  that  sum ;  the 
conveyance,  after  registry,  is  to  be  deposited  with  a  third  per- 
son till  repayment  of  the  same  with  interest,  or  till  a  certain 

1  Colwell  V.  Woods,  3  Watts,  188.  *  Brown  v.  Nickle,  6  Barr,  390. 

2  Kent  V.  AUbritain,  4  How.  (Miss.)         ^  Perkins  i'.  Dibble,  10  Ohio,  433. 
317.  ^  Baldwin  v.  Jenkins,  23  Miss.  206, 

3  Stocking  V.  Fairchild,  5  Pick.  181 ; 
ace.  Whitney  v.  French,  25  Verm.  663. 


40  THE   LAW    OF   MORTGAGES.  [CH.  IL 

day  ;  in  default  of  such  payment,  the  deed  to  be  delivered 
to  the  demandant,  who  may  thereupon  enter  and  take  the 
profits.  The  tenant  claims,  that  the  transaction  constitutes 
a  mortgage,  and  to  be  heard  in  chancery.  Held,  a  mortgage.^ 
So  a  conveyance  to  a  trustee,  with  power  to  sell,  pay  a  debt 
from  the  proceeds,  and  deliver  the  balance  to  the  grantor, 
upon  his  failure  to  pay  the  debt,  is  held  a  mortgage,  and  to 
take  effect  only  from  registration.^  So  a  conveyance  ^r  the 
full  value  of  the  land,  with  a  written  agreement,  that,  if  the 
grantee  could  sell  it  for  more  within  two  years,  with  interest 
and  the  cost  of  repairs,  the  surplus  should  be  paid  the  grantor, 
was  held^  mortgage,  though  the  grantee  swore  in  his  answer 
that  he  considered  it  a  sale.^  So  an  absolute  deed  to  a  cred- 
itor, with  the  understanding  that  he  should  pay  his  own 
debt,  indemnify  himself  against  his  liabilities,  and  satisfy 
other  creditors,  and  pay  the  balance  to  the  debtor's  wife  and 
children ;  was  held  a  mortgage  as  to  the  debt  of  the  grantee, 
and  a  trust  for  the  balance.^  And  a  lease  for  years  by  in- 
denture, the  lessor  acknowledging  the  receipt  in  advance  of 
a  certain  sum,  as  rent  in  full  for  the  whole  term,  and  the 
lessee  covenanting  to  reconvey  on  repayment  of  such  sum 
with  interest,  is  a  mortgage,  with  the  same  privileges  as  a 
mortgage  of  the  freehold,  though  executed  only  by  the  les- 
sor, if  the  lessee  accepts  and  takes  possession  under  it.^  In 
such  case,  though  there  is  technically  no  covenant  by  the 
lessee,  upon  which  an  action  will  lie,  yet,  if  he  underlet  and 
receive  rent  during  the  term,  to  the  full  amount  of  the  sum 
paid,  with  interest,  his  estate  ceases,  and  the  title  revests  in 
the  lessor.  If  he  receive  more  than  that  sum,  the  surplus  is 
received  by  him,  not  as  mortgagee,  but  for  the  lessor,  who 
may  maintain  assumpsit  for  money  had  ami  received  against 
him.'5 

8.  But  a  bond,  given  two  years  after  the  deed,  to  convey 

'  Carey  v.  Rawson,  8  Mass.  159.  *  McLanahan     v.     McLanahan,     6 

2  WoodruflFr.  Robb,  19  Oliio,  212.  Humpli.  99. 

8  Gillis  V.  Martin,  2  Dev.  CIi.  470.  '"  Nugent  v.  Riley,  1  Met.  117. 

See  English  v.  Lane,  1  Port.  328  ;  Ben-  '^  Ibid, 
nett  V.  Union,  &c,  5  Humph.  012. 


CH.  II.]  DEFEASANCES.  41 

to  the  wife  of  the  grantor,  upon  payment  of  certain  notes, 
does  not  constitute  a  mortgage ;  and  parol  evidence  is  held 
inadmissible,  that  the  grantor  was  allowed  by  the  grantee  to 
retain  possession,  that  the  deed  was  given  as  security,  and 
the  bond  not  made  at  the  same  time  with  the  deed,  only  be- 
cause the  amount  due  had  not  then  been  ascertained.^  Nor 
does  a  written  agreement  by  the  grantee,  that  he  will,  at  his 
election,  either  reconvey  upon  payment  of  his  debt,  or  sell  the 
land,  pay  himself  from  the  proceeds,  and  pay  over  the  bal- 
ance to  the  grantor,  constitute  a  mortgage.^  Nor  an  agree- 
ment under  seal  by  a  purchaser  of  land,  with  an  agent  of  his 
creditor,  assigning  to  the  agent  all  his  interest  in  the  land,  in 
trust  for  the  creditor,  and  promising  to  give  the  creditor  a 
mortgage,  as  soon  as  he  should  obtain  a  deed.-^  Nor  a  de- 
cree that  a  party  is  entitled  to  certain  lands,  and  that  he  be 
let  into  possession,  charged  with  the  payjnent  of  a  certain 
sura  to  another  person.*  So,  where  A.,  having  sold  land  to 
B.,  conveyed  the  same  to  C,  who  was  surety  upon  a  note 
signed  by  B.,  and  C.  gave  B.  a  bond,  conditioned  to  convey 
to  him,  upon  being  indemnified  for  his  liability  on  the  note ; 
held,  C.  was  not  a  mortgagee,  but  the  absolute  owner  of  the 
estate.^  So,  upon  a  loan  of  money,  a  scrivener  drew  a  deed 
of  land  and  a  bond  of  defeasance,  which  were  executed,  and 
the  deed  delivered,  but,  by  agreement,  the  bond  left  with 
him,  to  be  delivered  to  the  obligee  if  within  a  certain  time 
he  should  repay  the  money,  otherwise  to  the  obligor.  The 
money  not  being  repaid  within  the  time,  the  bond  was  given 
up  to  the  obligor ;  and,  the  obligee  having  died  before  it  was 
thus  given  up,  his  administratrix  brings  a  bill  in  equity  to 
redeem,  against  a  purchaser  with  notice  from  the  obligor. 
Held,  the  bond  was  an  escrow,  and  did  not  constitute  the 
transaction  a  mortgage,  and  the  bill  was  dismissed.^  So  a 
parol  agreement  was  made  between  A.  and  B.,  that  A.  should 
pay  for  certain  lands,  and,  on  being  reimbursed  by  B.  there- 

1  Bennock  v.  Whipple,  3  Fairf.  346.  *  Davenport  v.  Bartlett,  9  Ala.  179. 

2  Fuller  V.  Pratt,  1  Fairf.  197.  ^  Fowler  v.  Rice,  17  Pick.  100. 

3  Humphreys   v.   Snyder,    1    Morr.  *^'  Bodwell  w.  Webster,  13  Pick.  411. 
(Iowa,)  263. 

4  * 


42  THE    LAW    OF   MORTGAGES.  [CH.  IL 

for,  convey  them  to  B.  The  lands  were  sold  at  sheriff's  sale, 
bought  by  A.  with  his  own  money,  and  conveyed  to  him  by 
the  sheriff.  Held,  the  sheriff  had  no  authority  to  take  a  mort- 
gage, either  from  the  purchaser  at  the  sale,  or  his  assignee ; 
and  that  the  contract  between  A.  and  B.  was  simply  a  con- 
tract for  a  purchase  of  the  premises,  and  did  not  possess  any 
attribute  of  a  mortgage.^  So  a  conveyance  was  made,  in 
consideration  of  $200.  If  the  grantee  do  not  make  $200  out 
of  the  land,  the  grantor  to  refund  the  deficiency.  Ten  years 
afterwards,  the  grantor  brings  a  bill  to  redeem,  after  several 
transfers  of  the  land.  Held,  the  deed  was  not  on  its  face  a 
mortgage ;  if  so  intended,  it  gave  only  a  right  to  redeem  the 
proceeds  of  the  land  from  the  grantee  himself;  and  this  right 
was  waived  by  the  grantor's  declining  an  account.^ 

9.  In  general,  a  defeasance  must  be  an  instrument  of  as 
high  a  nature  as  tbat  which  it  is  designed  to  defeat.  There- 
fore, to  constitute  a  mortgage,  it  must  be  a  specialty,  or  under 
seal,  because  the  conveyance  which  it  accompanies  is  itself 
made  by  deed.  Thus,  where  A.  conveyed,  by  deed,  certain 
lands  to  B.,  and  took  back  a  writing,  not  under  seal,  signed 
by  B.,  whereby  he  promised  to  reconvey  the  same,  upon  pay- 
ment of  certain  moneys  by  a  certain  day  ;  held,  such  promise 
did  not  constitute  a  mortgage ;  that  the  time  of  payment 
was  to  be  regarded  as  of  the  essence  of  the  contract,  even  in 
a  court  of  equity,  and  that,  after  default,  A.  had  not  any 
attachable  interest.^  (c)     It  will  be  presently  seen,  that  this 

1  Stephenson  v.  Thompson,  13  III.        ^  French   v.    Sturdivant,   8  Greenl. 
186.  •  246. 

2  Floyd  V.  Harrison,  2  Rob.    (Va.) 
161. 


(c)  See  Mass.  Gen.  Sts.  716.  In  the  case  of  Harrison  v.  The  Trustees, 
&c.  (12  Mass.  456,)  the  statement  of  facts  set  forth,  that  the  instrument  set 
up  as  a  defeasance  "  was  not  under  seal,"  (p.  457.)  But,  in  the  opinion  of 
the  Court,  (pp.  463,  464,)  it  is  repeatedly  called  "  a  bond,"  and  the  only  ob- 
jection urged  against  it  by  counsel,  or  considered  by  the  Court,  appears  to 
have  been,  that  it  was  not  executed  at  the  same  time  with  the  deed,  which 
could  hardly  have  been  the  case,  had  it  been  an  unsealed  instrument.     In 


CH.  il]  defeasances.  43 

rule  is  not  adhered  to  in  courts  of  equity.^  And  it  is  not 
applied,  where  there  is  the  additional  reason  for  allowing 
redemption,  that  the  conveyance  was  made  by  mortgagor  to 
mortgagee.  Thus,  a  second  mortgagee  took  an  absolute 
deed,  giving  back  an  unsealed  agreement  to  dispose  of  the 
land,  apply  the  proceeds  upon  the  mortgage  debts,  and  pay 
over  any  surplus  to  the  mortgagor,  and,  if  necessary  to  per- 
fect the  title,  to  foreclose  the  second  mortgage.  He  accord- 
ingly foreclosed  the  second  mortgage,  and  the  land  was 
sold  under  the  decree,  subject  to  the  first  mortgage,  for 
less  than  one  twentieth  of  the  second  mortgage  debt  and 
costs.  The  second  mortgagee  took  possession  and  kept  down 
the  interest  on  the  first  mortgage,  and  paid  the  taxes,  but 
these  amounts  exceeded  the  income  of  the  estate.  Upon  a 
bill  brought  by  him  against  the  mortgagor,  it  was  held,  that 
the  absolute  deed  to  the  second  mortgagee,  with  the  written 
defeasance,  constituted  only  a  further  security  for  his  debt, 
and  he  could  not,  therefore*  pass  a  good  title  to  a  purchaser 
with  notice  ;  and  that  he  might  maintain  this  bill,  to  ascer- 
tain the  amount  due  him  upon  his  original  bond  and  mort- 
gage and  subsequent  payments,  and  for  a  sale  and  decree  for 
the  deficiency.^ 

10.  The  subject  of  defeasances  is  in  this  country  very  gen- 
erally regulated  by  statute.     An  act  of  Rhode  Island  ^  speaks 

1  See  Marshall  v.  Stewart,  17  Oliio,        -  Parsons  v.  Mumford,  3  Barb.  Cha. 
356.  152. 

3  R.  I.  Laws,  204. 


the  case  of  Wendell  v.  N.  H.  Bank,  (9  N.  H.  419,)  a  mortgage  was  abso- 
lutely assigned  by  a  sealed  insti-ument.  A  writing  was  given  back,  not 
under  seal,  acknowledging  it  as  security.  Held,  the  defeasance  was  invalid, 
if  the  property  was  real,  for  want  of  a  seal ;  if  personal,  there  could  be  no 
redemption  in  New  Hampshire. 

A  bill  in  equity  alleged,  that  a  seal  was  by  mistake  omitted  from  an  abso- 
lute deed,  and  prayed  that  the  defendant  might  be  compelled  to  affix  his 
seal.  It  appeared  that  there  was  a  defeasance,  making  the  deed  a  mortgage. 
Held,  under  the  general  prayer  for  reliet^  the  Court  could  not  decree  a  fore- 
closure.    Moore  v.  Madden,  2  Eng.  530. 


4-1  THE   LAW    OF   MORTGAGES.  [CH.    II. 

of  a  bond  of  defeasance,  or  other  instrument  which  creates  a 
mortgage  or  redeemable  estate.  Like  expressions  are  used 
in  Illinois  and  New  Jersey.^  In  the  latter  State,  any  ivriting 
may  operate  as  a  defeasance.  In  Delaware,^  the  language 
is,  "  a  defeasance  or  a  written  contract  in  the  nature  of  a 
defeasance,  or  for  reconveyance  of  the  premises,  or  any  part 
thereof."  In  New  Hampshire,  the  condition  of  the  mortgage 
must  be  contained  in  the  deed  itself.  But  reference  to  a 
bond,  made  at  the  same  time  with  the  deed,  is  sufficient ; 
or  to  private  papers  in  the  hands  of  the  parties.^  The  Re- 
vised Statutes  define  a  mortgage  as  a  conveyance  to  secure 
payment  of  money,  or  performance  of  any  other  thing  stated 
in  the  conditions  thereof.*  In  Florida,  all  luritings  of  con- 
veyance, to  secure  payment  of  money,  are  mortgages.^  In 
Massachusetts,  in  case  of  an  absolute  deed,  with  a  deed  of 
defeasance,  bond,  or  other  instrument  given  back,  the  latter 
must  be  recorded,  in  order  to  be  efTectual  against  any  one 
but  the  grantee,  his  heirs,  or  devisees,  or  those  having  actual 
notice.'^  [d)  In  Iowa,  a  party  having  notice  of  a  defeasance 
is  bound  by  it." 

11.  In  general,  express  provision  is  made  by  statute  for 
the  recording  of  defeasances.  In  Pennsylvania  and  Indi- 
ana, the  defeasance  must  be  recorded,  to  be  valid  against 
creditors,  &c.  In  New  Jersey,  the  registration  of  the  deed  is 
invalid,  so  that  the  grantee  shall  not  have  the  benefits,  &c.,  of 
a  mortgagee,  unless  with  it  he  record  a  note  or  abstract  of  the 
defeasance.  So  in  Delaware.  In  this  State,  the  defeasance 
is  void  against  bond  fide  purchasers,  unless  the  grantor  also 
record  it  within  a  certain  time.^     In  Illinois,  the  act  provides, 

1  111.  Rev.  L.  131 ;  1  N.  J.  L.  464 ;  *  N.  H.  Rev.  St.  245. 

N.  J.   Rev.  St.  658.     See  Kintner  v.  ^  Thomp.  Dig.  37&. 

Blair,  4  Halst.  Ch.  485.  «  Mass.  Rev.  St.  407,  ch.  59,  §  27. 

-  Dela.  St.  1829,  91.  "  Hall  v.  SaviU,  3  Iowa,  37. 

3  Bassett  v.   Bassett,   10  N.  H.  64;  »  Ub.  sup.  Ind.  Rev.  Sts.  232.     See 

Boody  V.  Davis,  20  N.  H.  140.  See  Thompson  o.  Mack,  Harring.  Ch.  150. 
Titit  V.  Walker,  ib.  150. 


(cl)  The  exception  applies  to  the  assignee  in  insolvency  of  the  grantor. 
Stetson  V   Gulliver,  2  Cush.  494.     (See  s.  11.) 


CH.  il]  defeasances.  45 

that  a  party  "  shall  not  have  the  benefit "  of  a  defeasance, 
unless  recorded  within  thirty  days.^  In  Pennsylvania,  it 
must  be  recorded,  to  bind  creditors,  &c.,  without  notice.^  In 
Michigan,  a  purchaser  with  notice  is  bound  without  regis- 
tration ;  but  not  a  judgment  creditor  or  execution  pur- 
chaser.3  In  Rhode  Island,'*  any  bond  or  other  instrument  of 
defeasance  shall  be  recorded  in  the  ofSce  of  the  town  clerk 
in  the  town  where  the  land  lies,  within  five  days  from  the 
execution  ;  otherwise,  such  defeasance  is  invalid  against  a 
bond  fide  purchaser  without  notice. 

12.  In  the  case  of  Friedley  v.  Hamilton,^  decided  in  Penn- 
sylvania, it  was  held,  that  an  absolute  deed  and  defeasance, 
made  at  the  same  time,  constitute  a  mortgage  ;  but  unless 
the  defeasance  is  recorded,  the  conveyance  is  to  be  considered 
as  an  unrecorded  mortgage,  and  postponed  to  a  subsequent 
judgment,  although  the  deed  itself  has  been  duly  recorded. 
Gibson,  C.  J.,  remarks  :  —  "  Deeds,  which  are  parts  of  the  same 
transaction,  constitute  but  one  instrument.  The  mortgage 
in  this  instance,  (for  such  it  undoubtedly  is,)  consisted  of  an 
absolute  conveyance,  and  a  bond  with  condition  to  reconvey 
on  payment  of  six  thousand  dollars  by  the  grantor.  The 
absolute  conveyance  has  been  recorded  ;  but,  according  to  the 
letter  of  the  act  of  assembly,  the  mortgage,  which  consists  of 
all  its  parts,  has  not ;  and  it  remains  to  be  seen,  whether  it  be 
well  recorded  within  the  equity  of  the  act.  The  sum  of  the 
argument  in  support  of  the  affirmative  is,  that,  as  the  parties 
interested  were  bound  to  take  notice  of  the  absolute  convey- 
ance, which  was  undoubtedly  well  recorded,  enough  was 
done  to  lead  to  an  inquiry  into  the  true  nature  of  the  trans- 
action, which  is  said  to  be  equivalent  to  full  notice.  Con- 
structive notice  from  facts  is  a  conclusion  of  law,  which  can 
be  drawn  only  from  facts  actually  within  the  knowledge  of 
the  party,  and  never  from  those  of  which  he  had  only  con- 
structive notice ;  else  we  should  have  construction  on  con- 

1  III.  Rev.  L.  131.  «  Mich.  Rev.  St.  261. 

-  Jaques  v.  Weeks,  7   Watts,   201  ;  *  Rev.  Sts.  1857,  p.  340. 

Manufrs,  &c.  v.  Bank,  &c.  7  W.  &  S.  ^  i7  S.  &  R.  70. 
335. 


4t)  THE   LAW   OF   MORTGAGES.  [OH   IL 

struction,  and  inference  on  inference,  without  beginning  or 
end.  The  registry  of  a  deed  was  intended  itself  to  contain 
all  the  essential  parts  of  full  and  complete  notice  of  every 
fact  necessary  to  be  known,  instead  of  barely  putting  the 
party  on  the  scent,  and  requiring  him  to  run  all  around  the 
world  after  the  grantor  and  the  grantee,  seeking  information 
as  to  the  true  nature  of  the  transaction.  The  deed  recorded 
here  was  notice  of  nothing  but  what  it  purported  to  be,  and 
by  that  the  creditor  was  informed  that  the  land  had  been 
conveyed  unconditionally." 

13.  In  the  case  of  Jaques  v.  Weeks,^  in  the  same  State,  it 
was  held,  that,  in  case  of  a  deed  and  defeasance,  the  recording 
of  the  deed  alone  was  not  sufficient,  within  the  recording 
acts,  as  against  a  subsequent  bond  fide  purchaser  or  creditor 
of  the  grantor  without  any  other  notice  ;  that,  if  a  purchaser 
have  notice  of  the  deed  and  defeasance,  he  is  in  equity  bound 
in  all  respects  like  the  party  under  whom  he  claims  ;  but  that 
it  is  otherwise  with  a  judgment  creditor,  or  an  execution  pur- 
chaser, because  a  jvidgment  has  priority  over  an  unrecorded 
mortgage.  Sergeant,  J.,  remarks :  '^  —  "  No  reason  exists,  why 
a  difference  should  be  made,  in  the  duty  of  the  parties  to  put 
the  lien  on  record,  where  but  one  instrument  is  used,  and 
where  there  are  two.  The  great  object  of  the  recording  acts 
is,  to  compel  those,  who  claim  a  priority  of  conveyance  or 
lien,  to  place  the  true  nature  of  the  transaction  on  record,  so 
that  all  may  have  recourse  to  it  for  con-ect  information  ;  but, 
if  the  deed  alone  be  recorded  without  the  defeasance,  a  false 
notice  of  the  transaction  is  given.  To  allow  this  to  be  valid, 
leaves  it  in  the  power  of  the  parties  to  hinder  and  defeat  pur- 
chasers and  creditors,  by  making  that,  which  was  in  reality  a 
mortgage,  bear  the  appearance  of  an  absolute  deed,  or  other- 
wise, just  as  it  suits  their  purposes.  The  mortgagee  may 
thus  become  a  secret  trustee  for  the  mortgagor  as  to  the  sur- 
plus beyond  the  money  actually  due.  To  say  that  the  mort- 
gagor may  or  may  not  record  the  defeasance,  as  he  pleases, 

'  7  Watts,  2G1.  -^  lb.  268. 


en.    II.]  DEFEASANCES.  47 

and  that  if  he  did  not,  he  thereby  agrees  that  the  deed  shall 
be  absokite,  is  to  enable  a  party  to  make  it  either  a  mortgage 
or  absolute  deed,  at  his  pleasure ;  whereas  the  character  of 
the  instruments  is  indelibly  stamped  upon  them  at  their 
original  formation,  constituting  them  in  law  a  mortgage  with 
all  its  incidents  ;  and,  if  it  were  once  a  mortgage,  it  always 
continues  to  be  so,  not  liable  to  be  changed  in  this  respect  by 
posterior  acts  or  omissions." 

14.  Upon  the  same  point,  in  Ncav  York,  Chancellor  Kent 
remarks  :  ^  —  "A  deed  absolute  upon  its  face,  though  taken 
by  way  of  mortgage,  is  certainly  a  lawful  instrument,  and  the 
party  is  only  subjected  to  the  hazard  of  having  it  defeated  by 
a  subsequent  mortgage  duly  registered."  And,  in  the  same 
State,  in  the  case  of  Dey  v.  Dunham,^  a  deed  was  made  to 
the  defendant,  absolute  on  its  face,  with  full  covenants,  and 
acknowledged  and  recorded  as  a  deed  on  the  day  of  its  date. 
It  was  admitted,  however,  that  the  deed  was  taken  in  the  first 
instance  as  security  for  the  payment  of  three  notes,  payable 
in  six  months,  and  bearing  date  about  the  same  time  with  the 
deed,  in  January,  1810.  Afterwards,  on  the  twenty-seventh 
of  July  1810,  about  the  time  the  notes  became  due,  other 
notes  were  given  in  lieu  of  them,  and  an  agreement  under 
seal  executed  by  the  defendant,  admitting  that  the  former 
deed  was  only  held  as  security,  and  if  the  substituted  notes 
were  paid,  the  deed  was  to  be  given  up,  and  the  lots  recon- 
veyed.  This  agreement  was  never  registered.  The  Chan- 
cellor remarks,^  this  agreement,  though  not  registered,  "  is  to 
be  considered  in  connection  with  the  deed,  and  relates  back 
to  its  date,  so  as  to  render  the  deed  from  its  commencement 
what  it  was  intended  to  be  by  the  parties,  a  mere  mortgage 
securing  the  payment  of  the  notes.  As  a  mortgage,  the  deed 
and  the  subsequent  agreement  ought  to  have  been  registered, 
to  protect  the  land  against  the  title  of  a  subsequent  bond  fide 
purchaser.  This  is  the  language  of  the  statute  concerning 
the  registry  of  mortgages  ;  and  recording  the  deed,  as  a  deed, 

1  James  v.  Johnson,  6  Johns.    Ch.  '^  2  Johns.  Ch.  182. 

432.  3  lb.  18U. 


48  THE    LAW    OF   MORTGAGES.  [CH.    II. 

was  of  no  avail  in  this  case,  for  the  plaintiff  was  not  bound 
to  search  the  record  of  deeds,  in  order  to  be  protected  against 
the  operation  of  a  mortgage."  Upon  these  grounds  it  was 
held,  that  the  title  of  the  plaintiff,  who  claimed  under  a  sub- 
sequent conveyance  from  the  grantor  in  trust  to  pay  debts, 
should  prevail  over  that  of  the  defendant,  although  a  schedule 
annexed  to  such  conveyance  stated  that  "  the  title  to  the  fifty 
lots  is  in  the  name  of  the  defendant,  given  as  collateral  security 
to  pay  certain  notes."  To  chEirge  the  trustee  with  notice, 
there  should  have  been  a  statement  of  the  amount,  and  num- 
ber, and  times  of  payment  of  the  notes.  The  plaintiff"  might 
not  have  inferred,  from  the  schedule,  that  the  defendant  held 
anything  more  than  a  nominal  title,  and  perhaps  as  a  mere 
trustee  upon  some  extinguished  debt.  It  was  not  even  said 
to  be  a  subsisting  debt. 

15.  The  rule,  as  to  the  recording  of  a  defeasance,  applies' 
only  to  a  bond  from  the  grantee  to  the  grantor  ;  not  to  a  bond 
from  the  grantor  to  the  grantee,  secured  by  the  conveyance. 
Thus  a  statute  in  Maine  provided,  that  the  title  to  an  estate, 
in  the  possession  of  any  person  other  than  the  party  to  a 
bond,  deed,  or  other  instrument  of  defeasance,  shall  not  be 
affected  by  it  unless  recorded.  Held,  a  bond  made  by  the 
mortgagor  to  the  mortgagee,  and  secured  by  the  mortgage, 
did  not  come  within  this  provision.^ 

16.  A  bond  of  defeasance  is  valid  in  Maine  against  an 
attaching  creditor  of  the  grantor,  whose  attachment  was 
made  before  the  Revised  Statutes,  and  who  at  the  time  of 
attachment  had  express  or  implied  notice  of  the  bond.^ 

17.  Independently  of  statute,  a  defeasance  is  valid  betvjeen 
the  parlies  without  registration,  and  constitutes  the  transac- 
tion a  mortgage,  upon  which  there  may  be  conditional  judg- 
ment.3 

1  Noyes  r.  Sturdivant,  6  Shepl.  104.        -  M'LaugUlin  v.  Shepherd,  32  Maine, 
See  4;i  Maine,  ail.  143. 

»  Jackson  v.  Ford,  40  Maine,  381. 


PAROL   DEFEASANCES. 


49 


CHAPTER   HI. 


PAROL    DEFEASANCES. 


Whether  a  mortgage  can  be  created 
by  parol  agreement,  or  proved  by  parol 
evidence.    Doctrines  of  law  and  equity 


upon  the  subject.  Practice  in  the  Unit- 
ed States. 


1.  The  rules  stated  in  the  last  chapter,  in  relation  to  defea- 
sances, are  alike  applicable  in  courts  of  law  and  of  equity  ; 
giving  to  a  deed  and  defeasance  the  same  operation  and 
effect,  in  all  respects,  as  to  a  mortgage,  made  by  a  single  in- 
strument. In  addition  to  this  well-settled  principle,  courts 
of  chancery  have  sometimes  adopted  the  further  one,  that 
in  equity  an  absolute  deed  may  be  shown  to  have  been  given 
as  security,  and  thus  made  to  operate  as  a  mortgage,  by  any 
instrument  in  writing,  though  not  under  seal,  and  even  by 
parol  evidence.  Or  a  mortgage  may  even  be  presumed  from 
the  conditions  and  circumstances  of  a  conveyance.^  It  has 
been  said,-  the/<zc^  of  a  deed's  being  given  as  security  deter- 
mines its  character,  not  the  evidence  of  the  fact.  Also,  that 
parol  evidence  that  a  deed  is  a  mortgage  is  not  heard  in  con- 
tradiction of  the  deed^  but  in  explanation  of  the  transaction,  to 
prevent  the  perpetration  of  fraud  by  the  mortgagee.^  {a) 

1  Whitcomb  v.  Sutherland,   18  111.  «  Bank,  &c.  r.  Sprigg,  1  McL.  183, 

578.  .  184.  See  Hughes  #£dVards,  9  Wheat. 

^  Miami,  &c.  v.  Bank,  &c.  Wright.  489  :  Morris  v.  Nixon,  1  How.  118. 
249. 


(a)  The  attempt  to  set  up  a  deed  given  for  security  as  absolute  is  some- 
times treated  as  per  se  a  fraud.  Roo:an  v.  Walker,  1  Wis.  527.  It  is*also 
said,  (Holmes  v.  Fresh,  9  jMis.  201,)  that  an  absolute  deed  is  not  to  be 
treated  as  a  mortgage,  unless  all  parties,  not  the  grantor  alone,  so  considered 
it ;  and.  on  the  other  hand,  that  the  treatment  of  an  absolute  deed  as  condi- 
tional bu  the  grantee  makes  it  a  mortgage.  Nichols  r.  Reynolds,  1  Ang. 
(R.  I.)  30.  So  it  has  been  held,  that  taking  judgment  for  the  amount  of 
the  consideration  of  a  deed  is  evidence  to  show  it  a  mortgage.     Hamet  v. 

VOL.  1.  5 


50  THE    LAW    OF    MORTGAGES.  [CH.   III. 

2.  Tt  is  to  be  observed,  however,  that  this  rule  seems  to  be 
a  departure  from  that  established  principle  of  evidence  above 
referred  to,  which  excludes  parol  proofs,  to  control  or  vary 
written  instruments.  In  general,  the  rules  of  evidence  are  the 
same  in  law  and  equity.  Their  jurisdiction  and  power  are 
different,  in  reference  to  facts  and  circumstances  which  have 
been  legally  proved ;  but  the  principles  which  govern  the 
means  of  proof  are  substantially  the  same.  "  Equity  follows 
the  law."  Blackstone  says  :^  —  "  The  rules  of  property,  rules 
of  evidence,  and  rules  of  interpretation  in  both  courts  are,  or 
should  be,  exactly  the  same."  Again  :  ^  —  "  Both  courts  will 
equitably  construe,  but  neither  pretends  to  control  or  change 
a  lawful  stipulation  or  engagement."  The  only  deviation, 
in  a  court  of  equity,  from  the  rules  of  evidence  adopted  in 
courts  of  law,  is  thus  pointed  out  by  the  same  author :  ^ 
"  When  facts,  or  their  leading  circumstances,  rest  only  in  the 
knowledge  of  the  party,  a  court  of  equity  applies  itself  to 
his  conscience,  and  purges  him  upon  oath  with  regard  to  the 
truth  of  the  transaction  ;  and,  that  being  once  discovered,  the 
judgment  is  the  same  in  equity  as  it  would  have  been  at  law." 
So  Judge  Story  says  :  *  —  "  The  modes  of  seeking  and  grant- 
ing relief  in  equity  are  also  different  from  those  of  courts  of 
common  law.  The  latter  proceed  to  the  trial  of  contested 
facts  by  means  of  a  jury  ;  and  the  evidence  is  generally  to  be 
drawn,  not  from  the  parties,  but  from  third  persons,  who  are 
disinterested  witnesses.  But  courts  of  equity  try  causes 
without  a  jury  ;  and  they  address  themselves  to  the  con- 
science of  the  (k^endant,  and  require  him  to  answer  upon  his 
oath  the  matters  of  fact  stated  in  the  bill,  if  they  are  within 

1  3  Coram.  434.  ace.  Dwight  v.  Pome-  -  .3  Comm.  435. 

roy,   17   Mass.   303.      See   1    Sugden  »  lb.  437. 

Vend.  &  P.  180.  *  1  Comm.  on  Eq.  29. 


Dundass,  4  Barr,  178.  But  that  an  absolute  deed  cannot  be  turned  into  a 
mortgage  by  private  minutes  made  by  the  grantee.  Thomaston,  &c.  v. 
Stimpson,  8  Sliej)!.  11)5.  Records  are  admissible  evidence  tor  this  purpose. 
Hall  I'.  Savill,  3  Iowa,  37. 


cii.  til]  parol  defeasances.  51 

his  knowledge  ;  and  he  is  compellable  to  give  a  full  account 
of  all  such  facts,  with  all  their  circumstances,  without  evasion 
or  equivocation  ;  and  the  testimony  of  other  witnesses  also 
may  be  taken,  to  confirm  or  to  refute  the  facts  so  alleged." 
The  following  remarks  of  the  same  author,  in  other  connec- 
tions, would  seem  to  indicate,  that  he  does  not  regard  this 
peculiarity  in  the  practice  of  a  court  of  equity,  as  any  depart- 
ure from  the  general  rule  of  law  with  regard  to  parol  evidence. 
He  says  :^  —  "  Relief  will  be  granted  in  cases  of  written  in- 
struments "  (for  mistake)  "  only  where  there  is  a  plain  mis- 
take, clearly  made  out  by  satisfactory  proofs.  The  rule,  as 
to  rejecting  parol  evidence  to  contradict  written  agreements, 
is  by  no  means  confined  to  such  cases,"  {within  the  statute 
of  frauds.)  "  It  is  founded  upon  the  ground,  that  the  written 
instrument  furnishes  better  evidence  of  the  deliberate  inten- 
tion of  the  parties,  than  any  parol  proof  can  supply."  The 
same  author  remarks  :  ^  —  "As  to  what  constitutes  a  mortgage, 
there  is  no  difficulty  whatever  in  courts  of  equity,  although 
there  may  be  technical  embarrassments  in  courts  of  law. 
The  particular  form  or  words  of  the  conveyance  are  unim- 
portant ;  and  it  may  be  laid  down  as  a  general  rule,  subject 
to  few  exceptions,  that  whenever  a  conveyance,  assignment, 
or  other  instrument,  transferring  an  estate,  is  originally 
intended  between  the  parties  as  a  security  for  money,  or  for 
any  other  incumbrance,  whether  this  intention  appear  from 
the  same  instrument,  ox  from  any  other,  it  is  always  considered 
in  equity  as  a  mortgage.  Even  parol  evidence  is  admissible 
in  some  cases,  as  in  cases  oi  fraud,  accident,  and  mistake,  to 
show  that  a  conveyance,  absolute  on  its  face,  was  intended 
between  the  parties  to  be  a  mere  mortgage,  or  security  for 
money."  {h) 

1  1  Coram,  on  Eq.  173,  174.  2  2  lb.  335. 


(6)  In  Morris  v.  Nixon,  (1  How.  118,)  the  bill  charged  a  fraudulent  at- 
tempt to  hold  property  unconditionally,  under  a  deed  ab.^olute  in  form,  but 
intended  as  a  mortgage ;  and  parol  evidence  was  admitted,  that  the  parties 


52  TUE    LAW    OF    MORTGAGES.  [CH.    III. 

3.  Mr.  Greenleaf  says  :  ^  —  "If  a  grantee  fraudulently 
attempts  to  convert  into  an  absolute  sale  that  which,  was 
originally  meant  to  be  a  security  for  a  loan,  the  original  de- 
sign of  the  conveyance,  though  contrary  to  the  terms  of  the 
writing,  may  be  shown  by  parol."  The  same  writer  else- 
where remarks  :  ^  —  "  If  the  language  of  the  deed  is  plainly 
that  of  an  intent  to  make  a  mortgage,  it  is  decisive  ;  and  if 
the  parties  had  a  different  intent,  the  mistake  is  relievable 
only  in  equity,  upon  a  bill  specially  for  that  purpose.  But  if 
the  deed  is  in  terms  absolute,  or  doubtful  in  meaning,  it  may 
be  shown  by  parol  evidence  of  the  circumstances  to  have  been 
intended  for  a  mortgage."  He  further  says  :  ^  —  "  There  are 
three  descriptions  of  cases  which  are  treated  as  mortgages  in 
courts  of  equity.  First,  where  the  relation  of  debtor  and 
creditor,  in  respect  of  the  money  which  formed  the  consider- 
ation of  the  conveyance,  is  still  subsisting.  This  relation  is 
essential  to  every  mortgage,  founded  on  the  agreement  of 
the  parties.  Thus,  a  conveyance  to  the  creditor,  in  trust  to 
satisfy  his  own  demand,  is  a  mortgage,  (c)  Secondly,  cases 
of  fraud  on  the  part  of  the  creditor,  or  of  such  misconduct  as 
ought  in  equity  to  admit  the  debtor  to  a  right  to  redeem  the 
land.  Thus,  a  purchaser  at  a  sheriff's  sale,  under  a  contract 
with  the  debtor  that  ho  may  redeem,  will  be  regarded  only 
as  a  mortgagee.  Thirdly,  cases,  where  by  accident  or  mistake 
an  absolute  conveyance  was  made,  when  only  a  mortgage 

1  1  Greenl.  Ev.  431.  a  lb.  86,  n. 

^  2  Greenl.  Cruise,  80,  n. 


met  upon  the  footing  of  borrowing  and  lending,  with  an  offer  to  secure  the 
lender  by  a  mortgage.  It  also  appeared,  that  a  bond  was  given  to  the  lender. 
Held,  a  mortgage  in  eipiity,  unless  some  subsequent  bargain  of  a  different 
nature  were  proved. 

(c)  So,  on  the  ollu-r  liand,  where  one  person  took  a  mortgage  in  the 
name  of  another,  declaring  that  he  intended  the  mortgage  for  the  benefit 
of  the  latter,  and  that  the  principal  should  be  his  after  his  own  death,  and 
received  the  interest  during  his  life  ;  it  was  held,  that  after  his  death  the 
mortgage  belonged  to  tlie  other  person.  Benbuw  c.  Townsend,  1  My.  &  K. 
506. 


en.    III.]  PAROL    DEFEASANCES.  53 

was  intended.  In  all  these  cases,  parol  evidence  is  admissi- 
ble to  show  the  actual  transaction  and  the  circumstances  of 
the  case.  Where  the  deed  is  absolute  in  its  terms,  but  the 
grantor  claims  it  to  be  in  truth  only  a  mortgage,  the  burden 
of  proof  is  on  him,  to  show  the  real  intent  of  the  parties,  and 
that  the  present  form  of  the  transaction  arose  from  ignorance, 
accident,  mistake,  fraud,  or  undue  advantage  taken  of  his 
situation." 

4.  There  can  be  no  doubt  of  the  admissibility  of  parol  evi- 
dence to  prove  an  absolute  deed  a  mortgage,  under  any  of 
the  circumstances  stated  by  Mr.  Greenleaf.  Mistake^  surprise^ 
and  fraud,  (to  which,  perhaps,  should  be  added,  trust,)  are 
special  grounds  of  equity  jurisdiction  ;  and  may  in  all  other 
cases,  as  well  as  the  case  of  mortgages,  be  proved  by  parol 
evidence,  notwithstanding  the  existence  of  a  written  agree- 
ment between  the  parties,  because  the  general  rule  of  evidence, 
above  referred  to,  is  controlled  by  these  alleged  reasons  for 
equitable  relief.  It  will  be  seen,  that  in  some  cases  the  ad- 
mission of  parol  evidence  to  prove  a  mortgage  has  not  been 
thus  restricted.  The  reasons  for  thus  restricting  it,  however, 
have  been  forcibly  set  forth  by  learned  judges,  even,  in  some 
instances,  where  they  have  been  compelled  by  authority  to 
decide  against  their  own  convictions.  The  following  limita- 
tions, laid  down  in  a  recent  case,  may,  perhaps,  be  considered 
to  express  the  now  prevailing  rule  and  practice.  The  bur- 
den of  proof  is  upon  the  party  who  alleges  the  absolute  deed 
to  be  a  mortgage.  In  general,  mere  declarations  must  be 
corroborated  by  facts  ;  the  parol  proof  must  be  clear  and 
convincing;  and  the  terms  of  the  parol  defeasance  must  be 
established.^ 

5.  The  early  English  cases  upon  this  subject  are  mostly 
predicated  upon  some  one  of  the  special  grounds  above 
referred  to ;  and,  where  the  general  rule  alone  has  been  ap- 
plicable, parol  evidence  has  been  rejected.  In  Jason  v. 
Eyres,^  divers  proofs  touching  parol  declarations  were  offered 

1  Per    Strong,  J.,   Todd  v.    Camp-  -  2  Cha.  Cas.  35. 

bell,  32  Penn.  253. 

5  * 


64  THE    LAW    OF   MORTGAGES.  [CH.   III. 

and  read  on  both  sides,  of  which  the  Court  would  take  no  no- 
tice, but  rejected  them.  In  Joynes  v.  Statham,^  an  agreement 
for  a  mortgage  was  drawn  by  the  mortgagee,  the  mortgagor 
being  able  only  to  make  his  mark,  and  the  mortgagee  omit- 
ted to  insert  a  covenant  for  redemption.  Upon  a  bill  of  fore- 
closure, the  Court  permitted  the  mortgagor  to  read  evidence 
to  show  the  omission.  The  Lord  Chancellor  said  :  —  "  Sup- 
pose an  agreement  for  a  mortgage  drawn  by  the  mortgagee, 
the  mortgagor  being  a  marksman,  and  the  mortgagee  omit 
to  insert  a  covenant  for  redemption,  and  then  brings  a  bill 
to  foreclose  ;  shall  not  the  mortgagor  be  at  liberty  in  this 
court,  upon  reading  evidence,  to  show  the  omission  ?  "  In 
Maxwell  v.  Montacute,^  a  person  agreed  to  lend  money  on 
mortgage,  and  it  was  proposed  that  the  borrower  should 
make  an  absolute  deed,  taking  a  defeasance  from  the  grantee. 
The  deed  was  executed,  but  the  grantee  refused  to  give  back 
a  defeasance.  Lord  Nottingham  admitted  parol  evidence 
of  the  agreement,  and  decreed  in  favor  of  the  mortgagor. 
In  Walker  v.  Walker,^  Lord  Hardwicke  remarked  :  — 
"  Suppose  a  person  who  advances  money  should,  after  the 
borrower  has  executed  the  absolute  conveyance,  refuse  to 
execute  the  defeasance,  will  not  this  Court  relieve  against 
the  fraud  ?  "  And  parol  evidence  has  been  received  of  an 
absolute  grantee's  demanding  and  receiving  interest;  this 
being  considered  not  a  variation  of  the  agreement,  but  an 
explanation  of  what  it  was  meant  to  be.*  So,  where  the 
plaintiff  brought  a  bill  for  reconveyance  of  an  estate,  upon 
repayment  of  the  consideration  named  in  the  deed,  and  the 
defendant  in  his  answer  denied  any  right  of  redemption,  but 
admitted  an  agreement  to  hold  in  trust  for  the  plaintiff's 
wife,  &c.,  after  repayment  of  the  consideration ;  the  Court 
decreed  an  execution  of  such  trust.^ 

6.  The  doctrine  upon  this  subject  in  Massachusetts   has 
been  well  expressed,  as  follows  ;  more  particularly  with  ref- 

1  3  Atk.  387.  *  1  Pow.  151,  a. 

'^  rrcc.  C;h  520.  ^  Hampton  v.  Spencer,  2  Vern.  288  ; 

«  2  Atk.  'J'J.     iSee  also  Young  v.  Cottington   v.    Pletclier,   2  Atk.   155. 

Peacliy,  2  Atk.  257.  Ace.  Tibeau  v.  Tibeau,  22  Mis.  70. 


CU.  III.]  PAROL   DEFEASANCES.  55 

ercnce  to  instruments  not  under  seal,  offered  as  defeasances, 
but,  of  course,  applicable  a  fortiori  to  mere  verbal  agree- 
ments. "  In  chancery,  whenever  it  appears  from  written 
evidence,  that  land  is  conveyed  as  a  pledge  to  secure  the 
payment  of  money,  the  conveyance  will  be  treated  as  a  mort- 
gage, in  whatever  form  the  land  was  pledged  ;  and  if  we  had 
all  the  equity  powers  of  a  court  of  chancery,  I  should  be 
satisfied  that  the  conveyance  in  this  case,  with  the  written 
(unsealed)  contract  of  reconveyance,  would  be  deemed  in 
equity  a  mortgage,  and  the  grantee  (grantor)  would  be  al- 
lowed to  redeem.  But  the  equity  powers  of  this  Court  are 
derived  from  statute,  and  are  extremely  limited.  We  can 
relieve  mortgagors  only  in  cases  where  the  lands  are  granted 
on  condition,  by  force  of  any  deed  of  mortgage,  or  bargain 
and  sale  ivith  defeasance.  Now  a  defeasance  of  any  instru- 
ment of  conveyance  must  be  of  as  high  a  nature  as  the 
conveyance,  must  be  executed  at  the  same  time,  and  is 
to  be  considered  as  a  part  of  it ;  so  that  the  conveyance 
and  defeasance  must  be  taken  together,  and  considered 
as  parts  of  one  contract.  If,  therefore,  the  conveyance  is 
by  deed,  the  defeasance  must  be  by  deed."  "  The  coun- 
sel for  the  tenant  referred  to  the  statute  of  1802,  c.  33, 
which  provides  that  no  conveyance  of  any  land,  unless  for 
a  term  less  than  seven  years,  shall  be  defeated  or  incum- 
bered by  any  bond  or  other  deed,  or  instrument  of  defeasance, 
unless  they  are  registered.  This  provision  cannot  avail  to 
enlarge  our  jurisdiction,  which  was  not  within  the  purview 
of  the  act.  What  shall  be  deemed  an  instrument  of  defea- 
sance, must  still  be  determined  upon  the  principles  of  the 
common  law."  ^  And  the  same  doctrine  has  been  thus  ex- 
pressed in  a  subsequent  case  in  Massachusetts.  "  The  object 
of  this  bill  would  seem  to  be,  to  devest  the  mortgagee's  es- 
tate by  parol  evidence  of  a  promise  founded  on  no  legal  con- 


1  Per   Parsons,   C.   J.,   Kelleran   v.  47;  Flint  v.  Sheldon,  13  Mass.  443; 

Brown,  4  Mass.  44-5.     The  correctness  Saunders  ?;.  Frost,  5  Pick.  259  ;  Bod- 

of  this  decision  has  never  been  ques-  well  v.  Webster,  13  Pick.  413 ;  Boyd 

tioned.     22  Pick.  530.     See  ch.  18,  §  v.  Stone,  11  Mass.  342. 


56  THE   LAW    OF   MORTGAGES.  [CH.  III. 

sideration.  If  here  were  written  evidence,  the  want  of  con- 
sideration would  be  fatal  to  the  claim.  And  without  such 
evidence,  it  would  be  unhinging  our  whole  system  of  titles 
in  real  estate,  to  defeat  the  operation  of  a  legal  instrument 
under  seal,  in  this  way.  We  are  called  on  to  enjoin  against 
the  use  of  a  mortgage  deed,  by  verbal  proof  that  the  re- 
spondent had  given  up  his  estate.  The  proposition  is  self- 
evidently  false.^  (d) 

7.  In  Maine,  it  was  formerly  held,  that  parol  evidence  is 
inadmissible  to  reduce  an  absolute  deed  to  a  conditional  one, 
or  to  show  that  it  was  intended  merely  as  a  trust.'-^  And  a 
later  case  decides,  that,  where  an  instrument  is  in  form  an 
absolute  sale,  though  not  under  seal,  parol  testimony  cannot 
be  received  to  vary  it,  and  give  to  it  the  effect  of  a  mortgage.'^ 
But  equity  will  treat  as  a  mortgage  a  deed  absolute  in  form, 
when  it  appears  from  the  bill,  answer,  and  proofs,  that  it  was 
intended  merely  to  secure  a  debt  or  indemnify  against  liabil- 
ities.* And  where  an  absolute  deed  was  decreed  to  be  a 
mortgage,  and  the  mortgage  was  paid ;  the  Court  ordered 
the  grantor  and  grantee  to  release  the  estate  to  the  person 
equitably  entitled  to  it,  with  covenants  of  warranty  against 
all  persons  claiming  under  them,  or  either  of  them.^ 

8.  In  New  York,  this  question  has  often  arisen,  both  at 
law  and  in  equity,  and  has  given  rise  to  various  and  conflict- 
ing decisions.  In  Moses  v.  Murgatroyd,^  where  an  assign- 
ment was  in  form  absolute,  but  the  assignee  in  his  answer 
admitted  it  to  be  otherwise,  parol  evidence  was  received. 
In   Marks  v.  Pell,"  which  was  a  bill   to  redeem,   the  com- 

1  Per  Parker,  C.  J.,  Hunt  v.  May-  *  Howe  v.  Russell,  36  Maine,  116. 

nard,  6  Pick.  492.  &  Ibid. 

■^  Ellis  V.  Higgins,  32  Maine,  34.  «  1  Johns.  Ch.  119. 

3  Bryant  v.  Crosby,  36  Maine,  562.  '  Ibid.  599. 


(il)  In  1 736,  ail  estate  was  conveyed  by  a  deed  in  form  absolute.  In  1 742, 
the  grantee  conveyed  by  a  deed,  which  recited  that  the  second  grantee  had 
purcliased  the  first  grantor's  right  of  redemption  in  the  estate.  Held,  the 
rocilal  raised  no  presumption  that  the  former  deed  was  a  mortgage.  King 
V.  Little,  1  Cush.  43G. 


CII.  III.]  PAROL   DEFEASANCES.  57 

plainant  relied  upon  certain  confessions  of  the  defendant,  the 
grantee  ;  but  the  Court  decided  that  the  evidence  was  insuf- 
ficient, the  defendant  having  been  seventeen  years  in  the 
peaceable  occupation  of  the  premises  as  apparent  owner,  (e) 
In  Stevens  v.  Cooper/  where  several  parcels  of  land  were 
mortgaged,  it  was  held,  that  the  mortgagor  or  a  purchaser 
from  him  could  not  set  up  a  parol  agreement  made  at  the 
time  of  the  mortgage,  that,  in  case  the  mortgagor  should  sell 
either  of  the  lots,  the  mortgagee  would  release  such  lot  from 
the  mortgage,  on  being  paid  so  much  per  acre  by  the  pur- 
chaser. In  Strong  v.  Stewart,^  it  was  held,  that  parol  evi- 
dence is  admissible  that  the  defendant  fraudulently  attempted 
to  convert  a  loan  into  a  sale,  when  a  mortgage  was  intended. 
In  Jackson  v.  Jackson,^  it  was  held,  that,  where  a  mortgage 
is  conditioned  for  the  payment  of  money,  evidence  is  inad- 
missible of  its  being  actually  given  to  indemnify  the  mort- 
gagee as  bail  for  the  mortgagor,  and  that  no  damage  has 
been  thereby  incurred.  So  also  of  declarations  by  the  mort- 
gagee, that  the  mortgage  was  not  a  lien,  unless  a  subsequent 
mortgagee  was  thereby  misled.  In  Whittick  v.  Kane,"^  parol 
evidence  was  held  admissible  to  show  a  deed  a  mortgage, 
but  not  as  against  bond  fide  purchasers  without  notice.  In 
Patchin  v.  Pierce,^  parol  evidence  was  held  inadmissible  at 
law,  to  show  that  the  sum  intended  to  be  secured  was  less 
than  that  mentioned  in  the  deed.  Chief  Justice  Nelson  re- 
marked :  — "  An  absolute  deed  may  in  equity  be  turned  into 
a  mortgage  by  parol  proof;  but  that  is  on  the  assumption 
of  fraud  in  the  grantee,  upon  which  ground  the  action  of  the 
Court  is  sustained.  If  there  is  a  mistake  in  the  mortgage  as 
to  the  amount  of  indebtedness  of  the  mortgagor,  the  remedy, 

1  1  Johns.  Ch.  425.  *  1  Paige,  202.    See  Walton  v.  Cron- 

2  4  Johns.  Ch.  167.  \y,  14  Wend.  63. 

3  5  Cow.  173.  5  12  Wend.  61. 


(e)   Admissions  of  the  grantee,  with  accompanying:  circumstances,  were 
held  sufficient,  in  Mclntire  v.  Humphreys,  1  Hoffm.  Ch.  SI. 


68  THE   LAAV    OF   MORTGAGES.  [CH.  III. 

as  in  all  cases  of  this  kind,  is  to  be  sought  in  a  court  of 
equity."  In  Van  Buren  v.  Olmstead,^  it  is  held,  that  an 
execution  purchaser  may  redeem,  where  an  absolute  pur- 
chase is  shown  by  parol  to  have  been  a  mortgage.  In 
Holmes  v.  Grant,''^  that,  in  general,  where  a  contract  and 
conveyance  are  made  upon  a  negotiation  for  a  loan,  and  it 
appears  that  the  real  transaction  was  a  loan,  the  lender 
agreeing  to  receive  back  his  money  with  legal  interest,  or  a 
larger  amount  within  a  certain  time,  and  to  reconvey ;  eq- 
uity will  treat  it  as  a  mortgage,  whatever  may  be  the  form. 
And  gross  inadequacy  of  price  is  a  strong  circumstance  in 
favor  of  this  constrviction.  In  Swart  v.  Service,^  it  was  held 
that  a  defendant  in  ejectment  may  set  up  the  defence,  that 
a  deed  absolute  in  form  was  in  fact  a  mortgage,  and  the 
mortgage  debt  paid  by  the  mortgagor,  and  may  offer  parol 
evidence  of  these  facts,  without  connecting  himself  with  the 
title  of  the  mortgagor.  In  this  case,^  Cowen,  J.,  remarks:  — 
"  It  has  often  been  held  in  the  courts  of  equity  of  this  State, 
that  a  deed,  though  absolute  on  its  face,  may  by  parol  evi- 
dence be  shown  to  have  been  in  fact  a  mortgage  in  the  terms 
offered  here ;  and  the  same  doctrine  was  held  by  this  Court 
in  Roach  v.  Cosine,^  and  Walton  v.  Cronly's  Administrator,*^ 
equally  applicable  to  a  court  of  law,  and  has,  it  seems,  ceased 
to  be  the  subject  of  a  contest ;  for  no  objection  to  the  doc- 
trine is  now  made.  For  one,  I  was  always  at  a  loss  to  see 
on  what  principle  the  doctrine  could  be  rested,  either  at  law 
or  in  equity,  unless  fraud  or  mistake  was  shown  in  obtaining 
an  absolute  deed,  where  it  should  have  been  a  mortgage. 
In  either  case,  the  deed  might  be  rectified  in  equity  ;  and 
perhaps  even  at  law  in  this  State,  where  mortgages  stand  on 
much  the  same  footing  in  both  courts.  Short  of  that,  the 
evidence  is  a  direct  contradiction  of  the  deed ;  and  I  am  not 
aware  that  it  has  ever  been  allowed  in  any  other  courts 
of  equity    or   law.     But  with    us   the    doctrine   is   settled, 

1  5  Paige,  9.  «  21  Wend.  38. 

'■^  8  Paige,  243.  ^  9  Woiid.  227. 

8  21  Wend.  86.  6  14  Wend.  63. 


CH.  in.]  PAROL   DEFEASANCES.  59 

and  I  am  not  disposed  to  examine  its  foundations,  at  least 
without  the  advantage  of  discussion."  In  the  same  case, 
Mr.  Justice  Bronson,  dissenting,  remarked:^  —  "I  cannot 
agree  with  my  brethren,  in  following  one  or  two  recent  cases, 
which  hold  that  an  absolute  deed  can  be  turned  into  a  mort- 
gage in  a  court  of  law,  by  parol  evidence.  Where  the  trans- 
action was  intended  as  a  mortgage,  and,  through  fraud  or 
mistake,  the  conveyance  has  been  made  absolute  in  its  terms, 
a  court  of  equity,  acting  upon  well  established  principles,  can 
reform  the  deed.  But  this  will  only  be  done  on  a  direct  and 
appropriate  proceeding  for  that  purpose,  and  after  such  ample 
notice  to  all  parties  in  interest,  as  will  tend  most  effectually 
to  guard  against  surprise,  fraud,  and  false  swearing.  And, 
besides,  a  court  of  equity  can  and  will  protect  third  persons 
who  may  have  parted  with  their  money  on  the  faith  of  the 
deed.  But  a  court  of  law  has  neither  power  nor  process  to 
reform  a  deed.  If  parol  evidence  to  contradict  or  insert  a 
condition  in  the  conveyance  can  be  received  at  all,  it  must, 
of  necessity,  be  in  a  collateral  proceeding  ;  and  it  must  be 
received  whenever  either  party  chooses  to  offer  it.  It  can  be 
given  without  notice,  and  without  the  means  of  guarding 
against  the  obvious  danger  of  fraud,  surprise,  and  perjury. 
And,  beyond  this  :  when  a  court  of  law  turns  an  absolute 
deed  into  a  mortgage,  it  has  no  power  to  protect  a  bond  fide 
purchaser.  Other  mischiefs  will  be  likely  to  result  from  ad- 
mitting such  evidence  ;  but  without  attempting,  at  this  time, 
to  point  them  out,  I  shall  content  myself  with  dissenting 
from  what  I  deem  a  new  and  very  dangerous  doctrine."  In 
Eckford  r.  DeKay,'-^  the  Chief  Justice,  in  giving  the  opinion 
of  the  Court,  remarked,  that  the  particular  recital  of  the  in- 
debtedness, as  the  consideration  for  the  land  conveyed,  was 
one  of  the  strongest  indications  that  the  parties  intended  an 
absolute  deed.  If  the  consideration  had  been  stated  gener- 
ally, the  fact  of  its  being  received  in  payment  of  this  partic- 
ular debt,  must  have  been  proved  aliunde,  by  a  written  re- 

1  2]  Wend.  39. 

••i  26  Wend.  39.     See  Brown  v.  Dewey,  2  Barb.  28. 


60  THE    LAAV    OF    MORTGAGES.  [CH.  Ilf. 

ceipt  or  parol  evidence;  whereas,  here  it  appeared  on  the 
face  of  the  deed.  In  Webb  v.  Rice,^  the  plaintiff  claimed 
under  a  warranty  deed  from  one  Moore,  and  the  defendant 
under  a  subsequent  warranty  deed  from  the  same  person. 
The  plaintiff's  deed  was  duly  recorded,  as  such.  The  de- 
fendant offered  parol  evidence,  to  prove  the  plaintiff's  deed  a 
mortgage,  of  certain  declarations  of  the  plaintiff,  subsequent 
to  his  deed,  importing  an  agreement  on  his  part  to  restore 
the  land  upon  certain  payments  to  be  made  by  Moore,  but 
not  definitely  showing  the  terms  of  such  agreement.  Held, 
the  evidence  was  competent  and  sufficient  to  defeat  the 
action.  Bronson,  J.,  again  dissented,  upon  substantially  the 
same  grounds  as  in  the  former  case.  In  a  later  case,  it  is 
said,  parties  to  a  deed,  absolute  on  its  face,  or  their  privies, 
cannot  by  evidence  vary  its  terms,  or  show  that  in  fact  it 
was  a  mortgage,  and  intended  as  such  ;  and  this  is  the  rule 
in  equity  as  well  as  at  law.^ 

9.  In  Pennsylvania,  in  the  case  of  Peterson  v.  Willing,^ 
parol  evidence  was  admitted  to  prove,  that  a  mortgage  run- 
ning to  one  person  was  intended  as  security  for  another. 
In  the  same  State  it  has  been  held,*  that  if  the  question, 
whether  a  mortgage  or  not,  depend  upon  writings,  it  is  for 
the  court;  if  upon  parol  evidence,  for  the  jury.  In  another 
case,°  Sergeant,  J.,  remai-ks :  —  "  When  it  is  once  ascertained, 
that  the  conveyance  is  to  be  considered  and  treated  as  a 
mortgage,  then  all  the  consequences  appertaining  in  equity 
to  a  mortgage  are  strictly  observed,  and  the  right  of  redemp- 
tion is  regarded  as  an  inseparable  incident."  And  in  a  still 
later  case  it  is  held,  that  the  grantor  of  land  may  recover  it 
from  one  who  purchases  of  the  grantee,  with  notice  that  the 
first  conveyance  was  made  merely  for  security.'^  That  a 
deed  made  in  consideration  of  a  preexisting  debt,  and  with 
the  understanding  that  the  debt  shall  continue,  is  a  mort- 


1  1  Hill,  60G.  *  Wliarf   v.   Howell,   5   Binn.   49'J 

2  Taylor  v.  Baldwin.  10  Barb.  582.       Ace.  Carter  v.  Carter,  5  Tex.  93. 

8  3  Dal.  606.  ^  Jacques  v.  Weeks,  7  Watts,  2G8. 

«  Cole  V.  Boland,  22  Tenn.  431. 


CH.    Iir.]  PAROL   DEFEASANCES.  61 

gage.  And  this  understanding  may  be  proved  by  parol  evi- 
dence.^ And  that  a  defeasance  may  consist  in  a  parol  prom- 
ise to  reconvey,  on  performance  of  the  condition.^  It  is  held, 
however,  that  mere  verbal  declarations  are  insufficient,  unless 
corroborated  by  the  facts  and  cii'cumstances  of  the  case.^ 

10.  In  New  Hampshire,  as  in  Massachusetts,  the  rule 
is  adopted,  that,  before  equity  will  interfere  for  the  relief 
of  a  supposed  mortgagor,  the  fact  of  a  mortgage  must  first 
be  established  by  legal  evidence.  In  the  case  of  Bickford 
V.  Daniels,*  Judge  Woodbury  remarks :  — "  The  practice 
and  decisions  must  have  been  inadvertent,  which  would 
permit  a  court  of  common  law  to  sit  in  chancery  to  settle 
a  question  which  must  be  settled  or  agreed  before  they 
are  empowered  to  apply  any  chancery  principles  to  the 
case."  (/) 

11.  In  North  Carolina,  although  a  deed,  absolute  on  its 
face,  cannot  be  turned  into  a  mortgage,  by  parol  evidence  of 
a  concurrent  agreement  to  that  effect,  or,  in  general,  of  mere 
declarations  ;  it  may  be,  by  evidence  of  facts  and  circum- 
stances, more  especially  if  corroborative  of  declarations,  which, 
to  the  apprehension  of  men  versed  in  business,  and  judicial 
minds,  are  incompatible  with  the  idea  of  a  purchase,  and 
leave  no  fair  doubt  that  a  security  was  intended.^  The  omis- 
sion of  a  clause  of  redemption  must  be  alleged  to  have  oc- 
curred by  ignorance,  mistake,  fraud,  or  undue  advantage, 
such  as  gross  inadequacy  of  price.^     Thus,  in  case  of  a  con- 

1  Todd  V.  Campbell,  32  Penn.  250 ;     38 ;  McLaurin  v.  Wright,  2  Ired.  Ch. 
33  lb.  158.  94;    Elliott  v.  Maxwell,    7  Ired.   Eq. 

2  Kellum  V.  Smith,  33  Penn.  158.  246  ;  Sellers  v.  Stalaye,  lb.  13 ;  Mason 
s  32  Penn.  250.  v.  Hearne,  1  Busb.  Eq.  88 ;  Cook  v.  Gud- 
*  2  N.  H.  73.     See  Runlet  v.  Otis,     ger,  2  Jones  Eq.  172 ;  Glisson  v.  Hill, 

2  N.  H.  167  ;  Clark  v.  Hobbs,  11  N.  H.  lb.  256  ;  Somell  v.  Barrett,  1  Busb.  50. 
122  ;  Boody  v.  Davis,  20  N.  H.  140.  »  Kelly  v.  Bryan,  6  Ired.  283.     See 

^  Blackwell  v.  Overby,  6  Ired.  Eq.     Streator  v.  Jones,  1  Mur.  449. 


(/)  So  it  is  said  by  Judge  Story  :  —  "A  court  of  law  may  be  compelled, 
in  many  cases,  to  say  that  there  is  no  mortgage^  when  a  court  of  equity  would 
not  hesitate  a  moment  in  pronouncing  that  there  is  an  equitable  mortgage." 
Flagg  V.  Mann,  2  Sumn.  527. 

VOL.  I.  6 


62  THE   LAW   OF   MORTGAGES.  [CH.    HI. 

veyance,  for  forty  dollars,  of  an  interest  in  a  gold  mine,  proved 
to  be  worth  four  hundred  dollars,  the  grantor  was,  at  the 
tinne,  in  great  distress  for  money,  and  ihe  alleged  price  was 
not  paid  at  the  preparation  or  execution  of  the  deed,  nor  any 
security  given  for  it.  The  grantees,  having  afterwards  sold 
the  interest  for  four  hundred  dollars,  retained  forty  dollars, 
and  paid  the  grantor  sixty  dollars  more  from  the  proceeds. 
The  grantor  declared  that  the  conveyance  was  made  in  trust, 
in  presence  of  the  grantees,  who  did  not  deny  it.  After  the 
deed,  the  grantor  remained  in  possession,  as  before,  taking 
the  profits.  Held,  a  mortgage.^  And  the  same  construction 
was  given  to  the  conveyance,  where  the  grantor  remained  in 
possession  and  use  of  the  land  more  than  a  year ;  and  was 
shown  to  have  been  pressed  for  money ;  where,  moreover, 
the  land  was  worth  twice  the  amount  of  the  consideration, 
and  the  grantee  agreed,  but  afterwards  refused,  to  execute  a 
bond  for  reconveyance.^  So  the  following  facts  were  held  to 
show  that  a  deed,  absolute  on  its  face,  could  only  have  been 
intended  as  a  mortgage.  The  consideration  expressed  was 
less  than  one  third  the  value  of  the  land,  and  the  grantor 
could  then  have  sold  it  for  its  value  ;  under  the  same  arrange- 
ment under  which  the  land  was  conveyed,  and  about  the 
same  time,  the  grantor  took  a  bill  of  sale,  absolute  on  its 
face,  for  some  perishable  property,  and  it  was  admitted  that 
it  was  only  a  security ;  the  grantee  remained  in  possession 
of  the  land  for  nearly  two  years,'  before  it  was  claimed  by  the 
gi-antor,  without  any  charge  of  rent ;  the  sura  paid  on  the 
mortgage  of  the  perishable  estate  exceeded  the  amount  due 
on  that  mortgage ;  and  the  sum  alleged  as  the  value  of  the 
land,  and  the  purchase-money,  was  the  precise  and  peculiar 
fraction  of  $31.40.3 

12.  In  Indiana,  in  the  case  of  Conwell  v.  Evill,*  the  com- 
plainant brought  a  bill  in  equity  to  redeem  certain  premises, 
which  he  had  conveyed  to  the  defendant  by  an  absolute 

1  Blackwell  v.  Overby,  6  Ired.  Eq.        *  4  Blackf.  G7.     See  Blair  v.  Bass, 
38.  ,  4  Blackf.   539  ;   Aborn   v.  Burnett,  2 

2  Steel  V.  Black,  3  Jones,  Eq.  427.        Blackf.  lUl. 
8  Kemp  V.  Earp,  7  Ired.  Eq.  167. 


CH.   III.]  PAROL  DEFEASANCES.  63 

deed.  The  bill  set  forth,  that  the  deed  was  intended  for  a 
mortgage  ;  but  the  answer  expressly  denied  it.  It  was  held, 
that,  though  the  intention  alleged  might  be  proved  by  parol 
evidence,  such  evidence,  to  be  effectual,  must  be  very  clear 
and  decisive  ;  and  that  evidence  of  the  defendant's  admis- 
sions should  be  received  with  great  caution.  It  was  further 
held,  that  proof  of  the  property's  having  cost  the  plaintiff 
about  three  times  as  much  as  the  defendant  paid  for  it,  and 
of  the  plaintiff's  having  retained  possession  two  years  after 
the  conveyance,  did  not  warrant  a  presumption  that  the 
deed  was  a  mortgage,  against  the  form  of  the  deed  and  the 
answer  of  the  defendant. 

13.  In  Vermont,  it  is  well  settled,  that  a  court  of  chancery 
will  treat  an  absolute  deed  of  real  estate,  given  to  secure  the 
payment  of  a  debt,  as  a  mortgage,  as  between  the  imme- 
diate parties,  especially  if  the  grantor  remains  in  possession, 
though  the  defeasance  rests  wholly  in  parol.^  The  rule  pro- 
ceeds upon  the  ground,  that,  when  there  is  an  attempt  to  set 
up  such  an  instrument  as  an  absolute  conveyance,  there  is  a 
fraudulent  application  or  use  made  of  it ;  and  this  is  a  proper 
ground  upon  which  chancery  may  proceed.^  The  admission 
^f  an  absolute  grantee,  that  the  deed  was  made  for  a  debt 
due  him,  is  insufficient  to  make  it  a  mortgage.^  (g) 

14.  In  Connecticut,  it  was  formerly  held,  that  a  court  of 
law  wiU  not  admit  parol  evidence,  as  between  third  persons, 
or  the  parties,  to  show,  that  an  absolute  deed  was  intended 

1  Campbell  i'.  Worthington,  6  Verm.        -  13  Verm.  349. 
448 ;  Baxter  v.  Willey,  9  Verm.  280 ;        ^  Bigelow  v.  Topliff,  25  Verm.  273. 
Wright  V.  Bates,  18  Verm.  348 ;  Mott 
V.  Harrington,  12  Verm.  119. 


(g)  A  testator  conveyed  a  farm  to  the  defendant,  taking  back  a  bond  and 
mortgage.  The  executor  brings  a  bill  in  equity  to  compel  performance  of 
the  bond,  according  to  the  plaintiff's  construction  thereof.  The  answer  set 
forth  the  bond  and  mortgage,  and  a  performance  of  the  condition.  Held, 
the  question  of  the  construction  as  well  as  performance  of  the  bond  was  to 
be  tried  at  law,  and  a  bill  in  equity  did  not  lie.  Washburn  v.  Titus,  9 
Verm.  211. 


64  THE    LAW    OF   MORTGAGES.  [CH.    III. 

as  security  for  a  debt.  Therefore,  where  A.  conveyed  to  B., 
and  B.  immediately  afterwards  gave  back  to  A.  an  agree- 
ment to  reconvey  on  certain  terms  ;  in  an  action  between 
two  towns,  involving  the  question  whether  B.  gained  a  set- 
tlement under  such  deed,  it  was  held,  that  parol  evidence 
was  inadmissible,  to  show,  that  the  deed  and  writing  were 
given  only  to  secure  a  loan,  for  which  A.  gave  his  notes.^ 
But  a  later  case  adopts  a  somewhat  different  doctrine.  A 
deed  was   made   with   the   following  condition :    "  In  case 

pays  to  the  sum  of  ^1,600,  with  interest,  &c., 

on  or  before  the  1st  of  January,  1843,  then  this  deed 
shall  be  void,"  &c.  The  premises  being  afterwards  mort- 
gaged a  second  time,  in  a  bill  for  foreclosure,  brought  by  the 
first  mortgagee,  parol  evidence  was  offered  to  prove,  that, 
immediately  before  the  execution  of  the  deed  to  him,  there 
was  a  settlement  of  their  concerns  between  him  and  the 
mortgagor,  and  about  eleven  hundred  dollars  found  to  be 
due ;  that  he  then  agreed  to  advance  enough  more  to  make 
up  sixteen  hundred  dollars,  surrendering  all  the  previous  evi- 
dences of  debt,  and  taking  a  mortgage  for  the  whole  ;  which 
arrangement  was  effected  by  the  mortgage ;  and  that  the 
mortgagee  had  no  other  security.  Held,  parol  evidence  of 
these  facts  was  admissible,  being  consistent  with  the  terms 
of  the  deed.2 

15.  In  Rhode  Island,  parol  evidence  is  admissible,  not- 
withstanding the  Statute  of  Frauds  of  that  State,  that  an  ab- 
solute deed  was  intended  as  a  mortgage,  and  that  the  defea- 
sance has  been  omitted  or  destroyed  by  fraud  or  mistake,  or 
omitted  by  design,  upon  mutual  confidence  between  the 
parties.^ 

16.  The  Supreme  Court  of  the  United  States  remark  up- 
on the  same  subject,  as  follows  :  —  "A  deed,  absolute  on  the 
face  of  it,  for  property,  offered  to  secure  a  loan  in  a  case  in 
which  the  parties  originally  met  upon  the  footing  of  borrow- 

'  Reading  v.  Weston,  8  Conn.  117.       See   Brainerd  v.  Brainerd,  15  Conn. 
2  Bacon    v.   Brown,   19    Conn.   29.     575. 

8  Taylor  v.  Luther,  2  Sumn.  228. 


CH.   in.]  PAROL   DEFEASANCES.  65 

ing  and  lending,  will  be  considered  a  deed  in  the  nature  of 
a  mortgage,  to  secure  a  loan,  though  another  consideration 
shall  be  in  the  recital  of  the  deed  than  the  loan,  unless  it 
shall  be  proved  that  the  parties  afterwards  bargained  for  the 
property  independently  of  the  loan  ;  or,  if  it  shall  appear  that 
the  chief  inducement  of  the  grantor,  in  making  the  deed, 
was  to  procure  the  loan  ;  or  that  the  grantee,  after  the  execu- 
tion of  the  conveyance,  treated  the  money  which  he  had  ad- 
vanced as  a  substantial  part  of  the  consideration,  and  not 
as  a  loan."  ^  So  it  has  been  held  in  the  Circuit  Court  of 
the  United  States,  that,  where  a  deed  is  in  form  absolute,  in 
equity  it  may  be  proved  to  be  a  mortgage,  by  admissions  of 
the  grantee  that  it  was  such,  and  that  a  defeasance  Avas  to 
be  made  and  filed  with  it ;  by  proof  of  moneys  paid  by  the 
grantor,  corresponding  in  amount  with  interest  rather  than 
rent ;  of  his  possession,  long  subsequent  to  the  deed  ;  of  the 
relation  of  debtor  and  creditor  between  the  parties ;  and  of 
the  excess  of  value  of  the  land  over  the  sum  paid.  The 
Statute  of  Frauds  is  not  applicable.^  (h) 

1  Per  Wayne,  J. ;  Morris  v.  Nixon,        ^  Bentley  v.   Phelps,  2   Woodb.  & 
1  How.  127.     See  Taylor  v.  Luther,  2    Min.  426. 
Sumn.  228. 


(Ji)  It  may  be  seen,  from,  the  following  additional  citations,  that  the  doc- 
trine upon  this  subject,  in  the  United  States,  is  quite  unsettled,  the  Courts 
of  each  State  having  apparently  been  governed  in  their  decisions  by  its  own 
local  law  or  practice,  and  by  the  particular  circumstances  of  the  several 
cases  which  have  come  before  them. 

In  Tennessee,  a  defeasance  may  be  proved  by  parol,  or  by  a  subsequent 
bond.  Brown  v.  Wright,  4  Yerg.  57.  See  Ruggles  v.  Williams,  1  Head, 
141. 

So,  where  a  conveyance  is  made  in  consideration  of  a  preexisting  debt, 
absolute  upon  its  face,  but  it  is  proved  that  there  was  a  condition  existing, 
and  a  part  of  the  same  transaction,  the  Court  will  construe  the  transaction  as 
a  mortgage.  Hinson  v.  Partee,  11  Humph.  587.  See  Scott  v.  Britton,  2 
Yerg.  215  ;  Yarborough  v.  Newell,  10  lb.  3  76.  But,  in  case  of  a  parol  con- 
dition to  a  written  contract,  omitted  by  fi-aud  or  mistake,  equity  will  not  re- 
form, unless  there  be  full,  clear,  and  unequivocal  proof.  Perry  v.  Pearson, 
1  Humph.  4.31.  See  Overton  v.  Bigelow,  3  Yerg.  513  ;  Zane  v.  Dickerson, 
6* 


66  THE   LAW,  OF   MORTGAGES.  [CH.   III. 

10  Yerg.  373.     In  Arkansas,  parol  evidence  is  admissible  in  equity.     Blake- 
more  V.  Byrnside,  2  Eng.  505.     But  this  is  on  the  assumption  of  fraud. 
Jordan  v.  Fenno,  8  Eng.  593.     So  in  Illinois.     Hovey  v.  Holcomb,  11  111. 
660.     See  Coates  v.  Woodworth,  13  111.  654  ;  Delahay  v.  McConnell  4  Scam. 
156.     In  Missouri,  an  absolute  deed  cannot  be  shown  to  be  a  mortgage,  at 
law.     Hogel  v.  Lindell,  10  Mis.  483.     Parol  evidence  has  been  held  inad- 
missible in  Mississippi.     Watson  v.  Dickens,  12  Sm.  &  Mar.  608.     But,  in  a 
later  case,  it  is  decided,  that  an  absolute  deed  may  be  proved  a  mortgage 
by  a  contemporary  or  subsequent  parol  agreement.     Prewett  v.  Dobbs,  13 
Sm.  &  Mar.  431.     See  Craft  v.  BuUard,  1   Sm.  &  ]\Iar.  Ch.  366  ;  Yasser  v. 
Vasser,  23  Miss.  378.     In  Maryland,  in  the  case  of  Watkins  v.  Stockett, 
6  Har.  &  John.  435,  parol  evidence  of  a  condition  was  held  inadmissible, 
unless  in  case  of  fraud,  surprise,  or  mistake.     Ace.  Bend  v.  Susquehanna, 
&c.  6  Har.  &  John.  128.     But  in  such  case  it  is  admissible.     Bank  of  West- 
minster V.  Whyte,  1  Md.  Ch.  536.     And  it  has  been  since  held,  that,  if  the 
intention  of  the  parties  was  to  secure  a  debt,  the  deed  is  a  mortgage.    Bank, 
&c.  V.  Whyte,  3  Md.  Ch.  508.     In  Texas,  parol  evidence  is  admissible,  even 
in  an  action  of  trespass  to  try  title,  to  show  that  a  deed,  absolute  on  its  face, 
was  intended  as  a  mortgage.     But  the  plaintiff  cannot  recover  without  pay- 
ing the  debt.     Stamper  v.  Johnson,  3  Tex.  1  ;  Carter  v.  Carter,  5  Tex.  93. 
As  to  the  rule  in  Virginia,  see  Ross  v.  Norvell,  1  Wash.  14.     In  Alabama, 
Hudson  V.  Ishell,  5  St.  &  P.  67 ;  English  v.  Zane,  1  Port.  328  ;  Chapman  v. 
Hughes,  14  Ala.  218  ;  Bryan  v.  Cowart,  21  Ala.  92.     In  Kentucky,  Mur- 
phey  V.   Trigg,  1   Monr.    72;  Lewis  v.  Rolands,  3  Monr.  406 ;  Lindlcy  v. 
Sharp,  7  Monr.  248;  Thompson  v.  Patton,  5  Litt.  74;  Reed  v.  Lansdale, 
Hard.  6.     In  Delaware,  Wadsworth  v.  Loranger,  Harring.   Ch.   113.     In 
Georgia,  U.  S.  Dig.  1848.  119.     In  South  Carolina,  except  in  case  of  fraud 
or  mistake,  the  evidence  must  be  clear  and  convincing.     If  the  answer  deny 
the  allegations  of  the  bill,  it  cannot  be  overcome  by  the  testimony  of  one 
witness.     Arnold  v.  Mattison,  3  Rich.  Eq.  153.     Equity  will  not  relieve  a 
grantor  who  makes  an  absolute  deed  to  protect  the  pi'operty  from  his  cred- 
itors ;  nor  his  administrator.     lb. 

In  California,  the  same  question  arose,  where  the  nominal  grantee  claimed 
that  the  conveyance  was  a  mortgage,  and  brought  an  action  for  the  alleged 
mortgage  debt.  In  such  case,  the  defendant  will  be  bound  by  an  admission, 
that  he  received  money  for  which  he  was  to  pay  interest,  and  that  the  plain- 
tiff was  to  reconvey  on  payment  of  the  debt,  accompanied  with  an  allegation 
of  conditional  sale,  and  that  the  title  was  to  remaiq  in  the  grantee  if  the 
money  was  not  paid.     Lee  v.  Evans,  8  Cal.  424. 


CH.  IV.]  REDEMPTION   CANNOT   BE   RESTRICTED. 


67 


CHAPTER  IV. 

DOCTRINE  OF  EQUITY  IN  THE  CONSTRUCTION  OF  THE  CONDITION 
OF  A  MORTGAGE.  RESTRICTION  UPON  THE  RIGHT  OF  REDEMP- 
TION,  ETC. 


I.  The  riglit  of  redemption  cannot 
be  restricted. 

6.  Though  the  condition  is  contained 
in  a  separate  defeasance. 

7.  Or  informally  expressed. 

8.  Application  of  the  rule  to  collat- 
eral or  subsequent  negotiations  between 
the  parties. 

9.  Not  applicable  in  case  oi family 
settlements. 

10.  Exception  in  case  of  corporations. 

II.  Release  of  the  equity  of  redemp- 


tion, or  cancelling  of  a  defeasance ; 
whether  valid. 

24.  Contract  to  pay  more  than  the 
mortgage  debt  and  interest. 

26.  Subsequent  agreement  to  limit 
the  time  of  redemption. 

28.  The  mortgagor  has  the  benefit 
of  any  new  acquisitions  made  by  the 
mortgagee. 

31.  Case  of  Flagg  v.  Mann. 

33.  Conditional  assignment  of  a 
mortgage. 


1.  A  MORTGAGE  being  intended  simply  for  security,  and 
the  nature  of  the  transaction  affording  opportunity  and  temp- 
tation to  the  lender  to  take  advantage  of  the  necessities  of 
the  borrower ;  courts  of  equity  have  strenuously  resisted  all 
attempts  to  abridge  the  right  of  redemption,  and  held  even 
express  agreements  for  that  purpose  to  be  wholly  void ;  con- 
trary to  the  otherwise  universal  principle  — "  modus  et  con- 
ventio  vincunt  legemr  ^  The  maxim  upon  which  they  pro- 
ceed is,  "  once  a  mortgage,  always  a  mortgage."  {a)  Thus 
an  agreement,  in  a  mortgage,  or  an  instrument  in  the  nature 
of  a  mortgage,  that,  upon  breach  of  the  condition,  the  prop- 

1  Coote,  49.  SeeYouIei;.  Richards,  415;  Baxter  f.  Child,  39  Maine,  110; 
Saxt.  534  ;  Cherry  c.  Bowen,  4  Sneed,     Zekind  ;-'.  Newkirk,  12  Ind.  544. 


(a)  Unless  it  would  operate  fraudulently  on  subsequent  purchasers  with- 
out notice.  Miami,  &c.  v.  Bank,  &c.,  Wright,  249.  See  Wilcox  v.  Morris, 
1  Mur.  117  ;  Stover  w.  Bounds,  1  Ohio,  (State,)  107.  The  civil  law  allowed 
no  clog  upon  the  right  of  redemption.     2  Story's  Eq.  §  1019. 


68  THE   LAW    OF   MORTGAGES.  [CH.  IV. 

erty  shall  become  absolute  in  the  mortgagee,  is  a  nullity.^ 
And  a  mortgagor  may  redeem,  though  in  receipts  and  ac- 
counts he  has  spoken  of  the  deed,  which  was  accompanied 
by  a  defeasance,  as  an  absolute  conveyance.^  So  it  has 
been  held,  (though  under  the  circumstances  of  this  particular 
case  the  decision  was  afterwards  reversed,)  that  the  heir 
of  the  mortgagor  may  redeem,  though  the  right  to  redeem 
the  mortgage  is,  in  terms,  limited  to  the  life  of  the  mort- 
gagor himself,  wlio  covenants  that  it  shall  never  be  re- 
deemed after  his  death.^  So  a  jointress  or  assignee  may 
redeem,  though  an  express  covenant  limits  the  right  to  the 
heirs  male  of  the  body  of  the  mortgagor.  And  connection 
between  a  mortgage  and  a  right  to  redeem  is  said  to  be  as 
inseparable  as  that  between  a  distress  and  replevin.* 

2.  The  rule  thus  stated  has  been  recognized  by  numerous 
and  eminent  judges  in  various  forms,  but  all  embodying  sub- 
stantially the  same  general  principle. 

3.  In  the  case  of  Spurgeon  v.  Collier,^  Chancellor  Northing- 
ton  remarked  :  — "  The  policy  of  this  Court  is  not  more  com- 
plete in  any  part  of  it  than  in  its  protection  of  mortgages  ;  and, 
as  a  general  rule  for  that  purpose,  a  mortgage  once  redeem- 
able continues  so  till  some  act  is  done  afresh  by  the  mort- 
gagor to  extinguish  the  redemption  ;  and  a  man  will  not  be 
sufiered  in  conscience  to  fetter  himself  with  a  limitation  or 
restriction  of  his  time  of  redemption.  It  would  ruin  the  dis- 
tressed and  unwary,  and  give  unconscionable  advantage  to 
greedy  and  designing  persons."  The  same  judge  remarked, 
in  the  case  of  Vernon  v.  Bethell :  ^ — "  This  Court,  as  a  court 
of  conscience,  is  very  jealous  of  taking  securities  for  a  loan, 
and  converting  such  securities  into  purchases  ;  and  therefore 
it  is  an  established  rule,  that  a  mortgagee  can  never  provide, 
at  the  time  of  making  the  loan,  for  any  event  or  condition  on 


1  Walling   V.   Aikin,   1   McMuUan,  See  some  remarks  upon  tliis  case,  by 

Ch.  1.  Marvin,  J.,  in    Uoqut  v.    L'oburu,  27 

■2  Bayley  v.  Bailey,  5  Gray,  505.  Barb.  233. 

"  NewfOMib   y.  Bonliain,  1   Vern.  7.  ''1  Eden,  5'.(. 

Ace.  Muri.liy  v.  Calley,  1  Allen,  lO'J.  '^  2  Eden,  113. 

*  Howard  c.  Harris,  1  Vern.  33, 1'JO. 


en.  IV.]  REDEMPTION   CANNOT   BE   RESTRICTED.  69 

which  the  equity  of  redemption  shall  be  discharged  and  the 
conveyance  become  absolute.  And  there  is  great  reason  and 
justice  in  this  rule  ;  for  necessitous  men  are  not,  truly  speak- 
ing, free  men  ;  but,  to  answer  a  present  exigency,  will  submit 
to  any  terms  that  the  crafty  may  impose  upon  them."  And 
'  the  same  principles  are  affirmed  in  the  American  cases. 
"  The  law  has  always  contemplated  with  jealousy  any  at- 
tempt to  evade  its  provisions,  in  respect  to  the  right  of  re- 
demption of  estates  conveyed  for  security.  And  while,  by 
reason  of  a  breach  of  the  condition  of  the  deed,  the  estate 
becomes  absolute  in  the  mortgagee  in  law ;  yet  equity  has 
always  preserved  to  the  mortgagor  a  right  of  redemption  of 
the  mortgaged  premises."  ^  "A  very  distinguished  chancel- 
lor said,  a  centuTy  past,  that  there  had  been  a  constant  con- 
test between  equity  and  the  rapacity  of  those  who  had 
attempted  to  take  undue  advantage  of  the  poverty  of  those 
with  whom  they  had  dealings."  '•^  "  It  is  not  very  material 
to  criticize  the  precise  language,  which  either  party  to  the 
suit  employs  in  the  relation  of  the  transaction,  or  to  stop 
long  in  scrutinizing  the  various  propositions  made,  or  by 
which  party  they  were  made.  If  the  transaction  in  the  first 
instance  appears  to  have  been  intended  as  a  pledge  or  mort- 
gage, Vv^ith  a  proviso  for  a  reconveyance  within  a  certain 
time,  such  circumstance  will  vitiate  the  sale,  and  turn  the 
absolute  conveyance  into  a  mortgage,  and  the  proviso  will 
be  rejected  as  repugnant  to  the  rule  of  equity,  that  the  right 
of  redemption  cannot  be  limited  or  restrained."  ^  "  Any 
agreement  that  the  assignment  was  to  be  an  absolute  sale, 
without  redemption,  upon  default  of  payment  on  the  day, 
was  unconscientious,  oppressive,  illegal,  and  void."  * 

5.  It  is  said  by  an  elementary  writer  :  —  "  The  considera- 
tion which  induced  courts  of  equity  to  adopt  this  maxim, 
and  to  reject  provisos  and  agreements,  converting  that  into 
a  sale  which  was  originally  a  mortgage,  on  a  given  event,  or 

1  Per  Hubbard,  J.,  Waters  v.  Ran-  ^  May  v.  Eastin,  2  Port.  414. 

dall,  6  Met.  483.  *  Per   Kent,    Chancellor,    Henry  v. 

-  Per  Huston,  J.,  Hiester  v.  Madiera,  Davis,  7  Johns.  Cha.  42. 
3  W.  &  Serg.  387-388. 


70  THE   LAW    OF   MORTGAGES.  [CH.  IV. 

on  payment  of  a  further  sum,  was,  that  if  such  provisos  and 
agreements  were  allowed,  there  would  have  been  a  door  open 
for  the  imposition  of  every  kind  of  restraint  on  the  equity  of 
redemption,  and  thereby  the  borrower,  through  necessity, 
would  have  been  driven  to  embrace  any  terms,  however 
unequal  or  cruel ;  which  would  have  tended  greatly  to  the 
furtherance  of  usury,  and  the  conversion  of  the  equitable 
jurisdiction  of  the  Court  into  an  engine  of  fraud  and  oppres- 
sion." ^  And  with  respect  to  any  express  provision  in  the 
mortgage,  that  the  mortgagor  shall  not  claim  relief  in  chan- 
cery, it  is  said :  —  "  Equity  is  part  of  the  law  of  England, 
and  therefore  it  cannot  in  any  manner  of  way  be  provided 
by  agreement,  in  case  of  a  mortgage,  that  the  Court  of 
Chancery  should  not  give  relief.  For  such  an  agreement 
would  be  contrary  to  natural  justice  in  the  creation  of  it, 
and  prove  a  general  mischief,  because  every  lender  would 
by  this  method  make  himseK  chancellor  in  his  own  case,  and 
prevent  the  judgment  of  the  Court."  ^  (b) 

1  Tow.  116,  a,  n.  ^  Treat,  of  Eq.  lib.  1,  c.  1,  §  4. 


(b)  The  following  are  leading  cases  upon  this  subject.  In  Jason  r.  Eyres, 
2  Cha.  Ca*  33,  the  right  of  redemption  was  limited  only  to  the  father,  not 
to  his  heir,  who  claimed  to  redeem.  The  Lord  Chancellor  decreed  it  a 
mortgage,  saying,  that,  if  the  father  had  lived  after  three  years,  (the  time 
fixed  for  payment  of  the  money,)  it  could  not  be  denied  but  he  might  have 
redeemed  it ;  and  that  no  mortgage,  by  any  artificial  words,  can  be  altered, 
unless  by  subsequent  agreement. 

In  Bowen  v.  Edwards,  1  Rep.  Ch.  2'22,  lands  worth  £200  per  annum  were 
mortgaged  for  £250,  and  a  deed  was  sealed  for  the  absolute  sale  of  them,  if 
the  money  should  not  be  paid  at  the  end  of  seven  years.  The  mortgagee, 
before  his  death,  exhibited  a  bill  against  the  mortgagor  for  the  land  or  the 
money.  Held,  the  mortgagor  might  redeem  from  the  son  of  the  mortgagee, 
after  the  seven  years  had  expired. 

In  Howard  c.  Harris,  1  Vern.  33,  190,  Howard  mortgages  land,  and  the 
proviso  for  redemption  was  thus:  —  "Provided  that  I  myself  or  the  heirs 
male  of  my  body  may  redeem."  The  question  was,  whether  his  assignee 
should  redeem  it ;  and  it  was  decreed  he  should  ;  for  if  once  a  mortgage, 
always  a  mortgage.     In  this  case  part  of  the  mortgaged  estate  happened  to 


CH.  IV.]  REDEMPTION   CANNOT   BE   RESTRICTED.  71 

6.  The  same  rule  applies  in  case  of  a  separate  defeasance. 
As  where  a  condition  thus  expressed  is  restricted  to  the  joint 


be  in  Mrs.  Howard's  jointure,  and  it  was  admitted  that  she  thereby  was 
entitled  to  a  redemption  of  the  whole  mortgage. 

In  a  note  to  the  above  case,  it  is  stated,  that  the  words  of  the  proviso  are, 
"  that  if  he  or  the  heirs  of  his  body  paid  the  £565,  the  mortgage-money  and 
interest  at  two  years'  end,  the  conveyance  to  be  void."  Then  a  further  sum 
of  money  was  borrowed  by  Howard,  and  the  above  mentioned  proviso  was 
released  by  the  deed,  and  another  proviso  contained  in  such  last  mentioned 
deed,  that  "  if  he  or  the  heirs  of  his  body  begotten  should  at  a  given  day 
therein  mentioned  pay  £1,000,  then,"  &c.  And  the  mortgagor  covenanted 
that  no  person  should  have  the  power  or  benefit  of  redemption  except  him- 
self and  the  heirs  of  his  body. 

In  Sevier  v.  Greenway,  19  Ves.  412,  a  mortgage  was  made  for  one  thou- 
sand years,  to  secure  £80,  which  by  assignments  came  to  the  defendant, 
Greenway.  In  November,  1799,  a  conveyance  was  made,  reciting  these 
facts,  and  that  Greenway  had  lent  to  the  plaintiff,  then  owning  the  equity 
of  redemptidn,  the  further  sum  of  £50,  and  had  contracted  to  purchase  the 
mortgaged  property  at  £150,  from  which  Greenway  was  to  retain  the  £50 
and  £80  ;  and  declaring  that  the  plaintiff  granted  and  released  the  prem- 
ises to  the  defendants,  Greenway  and  Marchant,  their  heirs  and  assigns,  to 
the  use  of  Marchant  during  the  life  of  Greenway,  in  trust  for  him  ;  remain- 
der to  Greenway  and  his  heirs ;  provided,  if  the  plaintiff  within  two  years 
wished  to  repurchase,  and  paid  Greenway  £150  with  interest,  the  defend- 
ants should  reconvey.  On  the  11th  of  January,  1800,  articles  of  agreement 
were  made,  reciting,  that  the  plaintiff  was  entitled  to  and  possessed  of  the 
premises,  being  very  much  out  of  repair  ;  and  that,  not  being  able  to  repair, 
he  had  applied  to  Greenway  to  repair  them  at  his  own  expense ;  that  Green- 
way might  do  this,  let  the  premises,  and  retain  them  till  his  expenses,  with 
interest,  should  be  rejiaid  ;  the  plaintiff,  who  had  been  tenant  in  tail,  agree- 
ing to  levy  a  fine,  and  Greenway  covenanting  to  repair  the  premises  stand- 
ing upon  mortgage ;  and,  upon  being  reimbursed,  to  deliver  up  the  articles 
to  be  cancelled.  August  12,  1800,  articles  of  agreement  were  made,  recit- 
ing that  Greenway  had  expended  £40  in  repairs,  and  the  plaintiff  had 
applied  to  him  for  further  repairs,  and  for  a  further  loan  of  £lO,  and  pro- 
viding that  in  consideration  of  this  loan  the  plaintiff  would  cause  the  tenants 
to  quit  the  premises  needing  repairs,  so  that  Greenway  might  enter  and  re- 
pair ;  that  Greenway  should  let  them,  and  receive  the  rents  till  repaid  the 
£40,  £lO,  and  all  sums  to  be  laid  out,  with  interest ;  that  the  plaintiff  should 
not  meddle  with  the  letting  of  the  premises,  or  receipt  of  the  rents,  till 
Greenway  was  fully  paid;  that  the  proviso  of  1799  should  be  observed,  and 
the  plaintiff  should  not  repurchase  till  payment  of  the  £160  a^d  the  further 


72  THE   LAW   OF   MORTGAGES.  [CH.  IV. 

lives  of  the  parties.  Thus  a  mortgage  was  given  for  £1,000. 
A  third  person  offered  to  pay  off  the  mortgage  and  advance 
.£200  more,  and  the  mortgagor  thereupon  conveyed  abso- 
lutely to  him,  with  the  usual  covenants,  including  a  cove- 
nant for  further  assurance,  and  the  grantee  by  a  separate 
died  covenanted  to  reconvey  to  the  grantor  upon  payment 
of  the  two  sums  in  their  joint  lives,  it  being  agreed  that  the 
grantor  should  be  tenant  of  the  premises  at  the  rent  of  X70 
per  annum.  The  grantor  was  afterwards  arrested  at  the  suit 
of  the  grantee  for  arrears  of  rent,  carried  to  prison,  and  thence 
removed  by  means  of  the  grantee  to  the  house  of  another 
person,  where  the  grantee  endeavored  to  persuade  him  to 
give  up  the  defeasance.  He  refused  to  do  so,  but  made  a 
bill  of  sale  of  all  his  property  to  his  son,  and  soon  afterwards 


sums  "with  interest.  The  fine  was  levied,  and  Greenway  had  been  long  in 
possession.  The  value  of  the  premises  in  1799  was  variously  estimated  from 
£15  to  £40  per  annum.  The  plaintiff  brings  a  bill  for  redemption,  and 
Greenway  by  his  answer  alleges  great  improvements,  as  well  as  repairs,  and 
claims  as  purchaser.  Per  Sir  William  Grant,  M.  R. :  —  "  If  this  had  rested 
upon  the  conveyance  of  November,  1799,  possession  being  taken,  I  do  not 
see  why  it  should  be  considered  otherwise  than  as  a  sale.  Much  stress,  how- 
ever need  not  be  laid  upon  the  circumstances  relating  to  the  taking  posses- 
sion, as  the  agreement  of  January,  1800,  precludes  that  question  ;  provid- 
ing, that  a  fine  shall  be  levied  of  the  premises  expressed  to  be  standing 
upon  mortgage ;  and  the  third  instrument  goes  further,  providing  for  a  fur- 
ther loan  of  £lO.  T  shall  therefore  decree  upon  this  as  a  mortgage."  The 
accounts  were  accordingly  directed,  with  rests;  the  defendant  to  be  allowed 
for  repairs  and  lasting  improvements,  and  the  costs  of  taking  the  accounts  ; 
but  having  insisted  on  a  purchase,  no  costs  to  the  hearing. 

In  Clench  v.  Witherly,  Cas.  Temp.  Finch,  376,  a  copyhold  estate  was  un- 
conditionally surrendered  to  the  use  of  a  third  person,  but  a  judgment  given 
at  the  same  time,  as  further  security,  with  a  note  in  writing  under  the  hands 
of  the  parties  to  the  surrender,  agreeing  that  if  the  surrenderor  should 
within  a  twelvemonth  pay  to  said  third  person  the  consideration-money  of 
the  surrender,  and  all  his  disbursements  for  fines,  he  sliould  surrender  back 
the  premises  to  the  surrenderer  and  his  heirs,  and  acknowledge  satisfaction 
on  the  judgment.  Upon  a  bill  brought  sixteen  years  after  the  expiration  of 
the  twelve  months,  held,  the  surrender  and  judgment  were  mere  securities 
for  the  repayment  of  money,  and  a  redemption  was  decreed. 


CII.  IV.]  REDEMPTION   CANNOT   BE   RESTRICTED.  73 

died.  The  son  was  soon  induced  to  give  up  the  defeasance, 
and  the  gi-antee  then  claimed  an  absolute  title.  A  redemp- 
tion was  decreed,  partly  upon  the  ground,  that,  if  a  restriction 
upon  the  equity  of  redemption  were  in  any  case  allowable, 
the  conduct  of  the  defendant  in  this  case  would  in  equity 
render  the  right  of  redemption  absolute,  he  having  prevented 
the  exercise  of  the  right  stipulated  for,  by  fraud,  oppression, 
and  imposition.^  So,  in  Jacques  v.  Weeks,  a  stipulation  in 
the  defeasance,  that  on  failure  to  pay  within  one  year  the 
defeasance  should  be  void,  was  held  not  sufficient  to  over- 
rule the  legal  character  of  the  instrument  as  a  mortgage,  or 
restrict  the  right  of  redemption  to  one  year.^  So  a  debtor 
conveyed  an  estate  to  his  creditor  for  the  amount  of  his  debt, 
and  took  back  a  contract,  providing  for  a  repurchase,  on  pay- 
ment, in  a  specified  time,  of  the  amount  of  the  debt  extin- 
guished, and  in  case  of  default  that  the  agreement  should  be 
null.  Held,  that  the  two  transactions  constituted  a  mort- 
gage, and  that  the  debtor  might  redeem.^ 

7.  The  same  rule  is  applied  to  all  transactions  in  the 
nature  of  a  mortgage,  whatever  may  be  their  precise  form. 
Thus  A.,  having  purchased  land,  and  taken  a  conveyance  to 
a  surety  for  the  price,  as  indemnity  to  the  surety,  entered 
into  a  contract  with  B.,  by  which  B.  was  to  pay  the  balance 
of  the  purchase-money  remaining  due,  to  take  a  conveyance 
from  the  surety,  and  to  convey  to  A.,  upon  payment  of  the 
money  advanced  by  B.,  at  a  time  specified.  A.  was  to  re- 
main in  possession  and  enjoyment  of  the  land  in  the  mean 
time,  paying  a  rent  equal  to  the  interest  of  the  debt  to  B., 
and  to  make  payment  without  assistance  from  any  one. 
Held,  a  mortgage,  and  that  A.  was  entitled  to  redeem,  though 
the  money  was  not  paid  at  the  day,  without  reference  to  the 
source  whence  he  derived  the  money.*  So  an  agreement  to 
convey  land  absolutely,  given  merely  as  security,  will  be  sub- 
ject to  the  rule  above  stated,  and  construed  as  a  mortgage. 

1  Spurgeon  v.  Collier,  1  Ed.  55.  *  Walling  v.   Aikin,   1    McMullan, 

2  7  Watts,  261.  Ch.  1. 
8  Batty  V.  Snook,  5  Mich.  231. 


74  THE   LAW   OP   MORTGAGES.  [CH.   IV. 

Thus  the  maker  of  two  notes  gave  an  instrument  to  his 
sureties  on  the  notes,  reciting  that  the  notes  were  given  for 
the  purchase  of  land,  and  then  adding :  — "  In  case  I  fail  to 
pay  said  notes,  I  do  bind  myself,  my  heirs,  &c.,  to  convey  to 
said  sureties  the  aforesaid  land."  Held,  a  mortgage,  and, 
on  failure  of  the  principal  to  pay  the  notes,  that  so  much  of 
the  land  as  would  satisfy  the  claim  of  the  sureties  should  be 
sold,  and  that  the  sureties  were  not  entitled  to  an  absolute 
conveyance.^ 

8,  And  the  unrestricted  right  of  redemption  will  be  ex- 
tended to  transactions  between  the  parties,  in  the  nature  of 
security  for  the  debt,  subsequent  to  the  original  mortgage. 
Thus  if  after  forfeiture  of  a  mortgage,  and  execution  issued 
upon  the  bond  secured  by  it,  other  property  is  conveyed  to 
secure  a  portion  of  the  debt,  redeemable  on  payment  of  a 
certain  sum  at  a  future  day ;  the  conveyance  will  relate  to 
the  original  transaction,  and  be  held  a  mortgage.  Hence,  if 
after  the  day  of  payment  the  land  is  conveyed  to  a  bond  fide 
purchaser,  even  though  six  years  have  elapsed  since  the  day 
of  payment,  the  mortgagor  will  be  entitled  to  an  account, 
and  to  be  credited  with  the  price  for  which  the  property  was 
sold.2  (c) 

1  Courtney  v.  Scott,  6  Litt.  457. 

1  Bloodgood  v.  Zeily,  2  Gaines's  Cas.  in  Er.  124. 

(c)  It  has  been  held  that  a  third  person  may  also  have  the  unlimited  right 
to  redeem,  under  certain  circumstances,  although  there  is  no  direct  mort- 
gage from  him  to  the  party  of  whom  redemption  is  claimed.  Thus  one 
having  an  equitable  title  to  land  sold  it,  and  received  a  part  of  the  price  ; 
but,  finding  difficulty  in  obtaining  the  balance,  made  another  sale  to  another 
person,  upon  condition  that  he  would  advance  such  balance,  and  give  the 
first  purchaser  six  months  to  pay  it ;  in  which  case  the  first  purchaser  was 
to  have  the  land,  otherwise  the  second  purchaser  should  have  it.  This  con- 
tract was  approved  by  the  first  purchaser,  who  accordingly  promised  to  pay 
the  money  to  the  second,  and  soon  afterwards  removed  from  the  land,  and 
the  second  purchaser  took  possession.  The  first  purchaser,  having  failed  to 
pay  the  money  within  the  six  months,  brings  a  bill  in  equity  to  redeem. 
Held,  as  there  had  been  no  treaty  for  a  sale,  nor  any  discussion  concerning 
the  adequacy  of  the  price,  which  was  far  less  than  the  real  value,  the  trans- 
action constituted  a  mortgage,  and  a  redemption  was  decreed.  Pennington 
V.  Hanby,  4  Munf.  140. 


CH.  IV.]  REDEMPTION   CANNOT   BE   RESTRICTED.  75 

9.  It  has  been  held,  in  England,  that,  where  a  mortgage  is 
made  to  or  for  a  relative  or  wife,  the  right  of  redemption  will 
not  be  allowed  beyond  the  time  stipulated,  the  circumstances 
raising  a  presumption  that  the  mortgage  was  intended  to  be 
beneficial  to  the  mortgagee.  In  case  of  marriage  settlement, 
non-fulfilment  of  the  condition  is  an  election  to  abide  by  the 
settlement,  and  no  redemption  allowed,  especially  after  the 
mortgagor's  death,  and  against  a  bond  fide  purchaser  from 
the  wife.  It  is  said,^  that  in  these  cases  the  contract  will  be 
considered  as  wearing  a  kind  of  double  aspect ;  and  that 
there  is  no  danger  of  any  fraud  or  practice  against  the  mort- 
gagor, which  is  the  mischief  intended  to  be  prevented  by  the 
maxim,  that  an  estate  cannot  be  a  mortgage  at  one  time, 
and  an  absolute  purchase  at  another.  Thus,  where  one  con- 
veyed to  a  relation  by  marriage,  by  an  absolute  deed,  taking 
back  another  deed,  which  provided  that  the  land  might  be 
redeemed  during  the  life  of  the  grantor  ;  held,  the  heir  of  the 
grantor  could  not  redeem.^  So  a  husband  and  wife  made 
an  absolute  conveyance  of  her  land  by  way  of  sale  with  fine. 
Subsequent  deeds  passed  between  the  parties,  which  indi- 
cated that  the  original  deeds  were  intended  to  operate  as  a 
mortgage  ;  and  there  was  an  express  recital  of  the  fact,  in 
one  of  the  deeds  produced  from  the  possession  of  the  person 
claiming  as  purchaser,  but  not  signed  by  him.  After  the 
lapse  of  many  years,  and  the  death  of  the  witnesses,  the  heir 
of  the  wife  brftigs  a  bill  to  redeem,  upon  the  ground  that  the 
deeds  passed  an  absolute  estate  only  during  the  life  of  the 
husband.  Held,  the  bill  should  not  be  maintained.^  So  a 
conveyance  in  fee  was  made  to  the  husband  of  the  grantor's 
kinswoman,  in  consideration  of  X  1,000,  with  a  redemise  for 
ninety-nine  years,  if  he  should  so  long  live,  containing  a 
covenant,  that,  if  he  should  pay  £1,000  with  interest  at  any 
time  during  his  life,  the  grantee  should  reconvey  ;  and,  if  he 
did  not  pay  the  money,  his  heirs,  &c.,  should  have  no  power 

1  1   Pow.   127  a.    Ace.   Com.  Dig.        -  King  v.  Bromley,  2  Abr.  Eq.  595 ; 
Chancery  4  A  3.  Bonliam  v.  Newcomb,  2  "Vent.  364. 

3  Tull  I'.  Owen,  4  Y.  &  Col.  192. 


76  THE   LAW    OF   MORTGAGES.  [CH.  IV. 

to  redeem.  After  the  grantor's  death,  the  money  not  having 
been  paid,  his  heir  brings  a  bill  to  redeem.  It  was  held,  in 
reversal  of  a  decree  of  Lord  Nottingham,  that  the  bill  could 
not  be  maintained,  for  the  following  reasons  : — It  was  proved, 
that  the  grantor  intended  in  this  transaction  to  make  a  settle- 
ment^ and  to  confer  a  kindness  and  a  benefit  upon  a  mort- 
gagee, in  case  he  should  not  redeem  during  his  life.  The 
right  of  redemption  being  extended  to  the  lifetime  of  the 
grantor,  no  foreclosure  would  have  been  allowed  while  he 
lived,  even  if  the  bargain  had  proved  unfavorable  to  the 
grantee,  by  the  long  continuance  of  his  life  ;  hence,  on  the 
other  hand,  no  equity  should  be  raised  to  deprive  the  grantee 
of  the  estate,  upon  his  death.  The  decision  was  afterwards 
affirmed  in  parliament.^ 

10.  An  exception  has  been  allowed  to  the  general  rule 
against  restricting  the  period  of  redemption,  in  the  case  of 
corporations,  whose  charter  provided  for  such  limitation. 
But  the  language  of  the  charter  will  be  strictly  construed  in 
favor  of  the  mortgagor.  Thus  it  has  been  held  in  New  York,^ 
that,  upon  failure  of  the  mortgagor,  under  the  act  of  1837,  for 
loaning  the  United  States'  deposit  fund,  to  pay  the  interest 
on  the  day  it  fell  due,  the  loan  commissioners  became  seised 
of  an  absolute  estate  in  fee ;  and  after  the  day  of  sale,  pay- 
ment not  being  made,  the  mortgagor  cannot  maintain  eject- 
ment. In  a  subsequent  case,  this  decision  seems  to  be  vir- 
tually overruled  ;  but  the  principle  in  a  modified  form  is  sub- 
stantially reaffirmed.  The  facts  were,  that  a  statute,  relating 
to  loans  of  the  United  States'  deposit  fund,  provided,  that, 
upon  non-payment  of  interest  within  a  certain  time  from  its 
falling  due,  the  commissioners  should  "  become  seised  of  an 
absolute  and  indefeasible  estate  in  fee,"  and  the  mortgagor 
"  utterly  foreclosed  and  barred  of  all  equity  of  redemption, 
any  law,  &c.,  to  the  contrary  notwithstanding."  The  statute 
further  provided,  however,  for  a  certain  right  of  redemption, 

1  Bonham  v.  Newcomb,  2  Vent.  3G4 ;        '^  Olinstead  v.  Elder,  2  Sandf.  325. 
1    Pow.    Vn   a;     Wolstan    v.   Aston, 
Hardr.  511. 


CH.  IV.J  REDEMPTION   CANNOT   BE   RESTRICTED.  77 

and,  ultimately,  for  a  sale  of  the  property.  Such  sale  hav- 
ing been  made,  and  the  State  having  become  the  purchaser, 
but  the  sale  being  void  for  informality  ;  held,  the  mortgagor 
could  not  maintain  an  action  for  the  land  against  a  grantee 
of  the  State.^  But  where  a  mortgage  was  made  to  a  corpo- 
ration, whose  charter  provided,  that,  whenever  the  corpora- 
tion should  purchase  real  estate  on  which  they  made  loans, 
the  mortgagors  should  have  the  right  of  redemption,  on  pay- 
ment of  the  debt  and  costs,  so  long  as  it  remained  in  the 
hands  of  the  corporation,  unsold  ;  the  corporation  having 
contracted  to  sell  the  property,  one  third  of  the  purchase- 
money  having  been  paid,  and  possession  taken  by  making 
surveys,  &c. :  held,  the  right  of  redemption  was  not  thereby 
extinguished.  To  produce  this  effect,  an  actual  conveyance 
must  have  been  executed.^ 

11.  Another  application  of  the  same  general  principle,  is 
that  relating  to  a  release  of  the  equity  of  redemption  to  the 
mortgagee,  or  a  purchase  of  it  by  him  subsequent  to  the 
original  transaction.  This  may  occur  either  with  or  without 
an  agreement  for  such  release  or  repurchase,  made  by  or  in 
connection  with  the  mortgage  itself.  The  distinction  has  been 
sometimes  made,  between  a  condition  that  if  the  mortgagee, 
on  failure  of  the  mortgagor  to  pay  the  debt  when  due,  pay 
him  a  further  sum,  the  former  shall  become  absolute  owner, 
which  is  said  to  be  void ;  and  an  agreement  to  give  the 
mortgagee  the  right  of  preemption,  which  has  been  assumed 
to  be  valid.^  Chancellor  Kent,  however,  suggests  that  this 
agreement  also  would  be  void.*  At  any  rate,  it  will  be  very 
strictly  construed,  and  the  fairness  and  value  must  be  shown 
by  clear  and  convincing  proof.  Loose  expressions  of  the 
mortgagor,  that  he  had  received  satisfaction  for  the  land, 
without  identifying  it,  are  held  insutticient  proof.^ 

1  Pell  V.  Ulinar,  (18  N.  Y.)  4  Smith,'       «  4  Kent,  142. 

139.  5  Holridge  v.  Gillespie,  2  John.  Ch. 

2  The  Farmers'  &c.  v.  Edwards,  26  34 ;  Hammonds  v.  Hopkins,  3  Yerg. 
Wend.  541.  525  ;    M'Kinstry  v.   Conly,    12    Ala. 

3  Wynkoop  v.  Cowing,  21  111.  570 ;  678. 
4  Kent,  142. 

7* 


78  THE   LAW    OF   MORTGAGES.  [cH.  IV. 

12.  Upon  the  general  subject  it  seems  to  be  well  settled, 
that  the  mortgagee  will  not  be  allowed  to  make  use  of  the 
incumbrance,  as  a  means  of  obtaining  the  equity  of  redemp- 
tion for  less  than  its  value.  More  especially,  that  the  mort- 
gagee shall  not  at  the  time  of  the  loan  contract  with  the 
mortgagor  for  an  absolute  purchase,  in  case  the  money  shall 
not  be  paid  as  agreed,  even  though  payment  of  the  debt  and 
interest  is  expressly  limited  to  a  particular  period.^  It  has 
been  held,  that  mere  inadequacy  of  price  is  no  ground  for 
setting  aside  a  purchase  of  the  equity  of  redemption  by  the 
mortgagee,  in  consideration  of  the  debt.^  But,  on  the  other 
hand,  a  purchase  of  the  equity  of  redemption  will  be  pecu- 
liarly discountenanced,  where  the  mortgagee  appears  to  have 
paid  nothing  for  it,  "  but  it  was  thrown  into  his  bargain."^ 
Thus,  in  case  of  a  mortgage  for  £200,  with  a  bond  condi- 
tioned, that,  if  the  sum  were  not  paid  at  the  day,  and  if  the 
mortgagee  should  then  pay  the  mortgagor  the  further  sum  of 
£78  in  full  for  the  purchase  of  the  land,  the  bond  should  be 
void  ;  the  X200  not  being  paid,  and  the  mortgagee  having 
paid  the  £78 ;  held,  the  infant  heir  of  the  mortgagor  might 
redeem.^  So  a  mortgage  of  anticipation  was  made  of  an 
estate  in  the  West  Indies,  and  upon  an  account  taken,  it  ap- 
pearing that  the  mortgagor  owed  the  mortgagee  a  large  sum, 
he  released  the  equity  to  the  mortgagee  and  his  heirs.  The 
consideration  of  the  conveyance  was  five  guineas  ;  no  release 
was  given  of  the  covenant  for  payment  of  the  money ;  and 
the  mortgagee,  while  in  possession,  kept  an  account  as  such ; 
and  both  in  conversation  and  by  letter  stated  himself  to  be  a 
mortgagee  in  possession,  within  twenty  years  from  the  com- 
mencement of  the  suit  to  redeem.  Held,  thirty-three  years 
after  the  release,  the  mortgagor  might  redeem.^  And,  in  a 
late  case  in  Connecticut,  the  same  principles  have  been  rec- 

1  Hicks  V.  Hicks,  5  Gill    &  J.  85  ;  "•^  Purdie  v.  Millet,  Taml.  28. 

2  Greenl.  Cruise,  97  n ;  1  Pow.  133 ;  ^  St.  John  i'.  Turner,  2  V^ern.  418. 

Coote,  30,  33 ;    M'Gan  v.  Marshall,  7  *  AVillett  v.  Winnell,  1  Vern.  488. 

Humpii.  121.   See  Thompson  v.  Mack,  &  Vernon  v.  Bethell,  2  Ed.  110. 
Harring.  Ch.  150 ;  Batty  v.  Snook,  5 
Mich.  231. 


CH.  IV.]  REDEMPTION   CANNOT   BE   RESTRICTED.  79 

ognized  as  peculiarly  applicable  between  parties  holding  the 
confidential  relation  of  attorney  and  client.  A.,  being  an  ig- 
norant and  inexperienced  man,  retained  B.,  an  attorney  at 
law,  in  a  suit  about  to  be  commenced,  and  conveyed  to  him 
real  estate  worth  about  $300,  being  his  chief  property,  as 
security  for  fees,  for  expenses  which  B.  agreed  to  advance, 
for  his  liability  in  a  bond  for  costs,  and  for  a  small  loan ;  B. 
agreeing  in  writing  to  reconvey  on  performance  of  these  con- 
ditions. B.  immediately  took  possession,  which  he  retained, 
paying  all  taxes.  B.  commenced  and  prosecuted  the  suit, 
paying  the  expenses,  and  in  about  three  years  recovered  a 
judgment,  the  amount  of  which  fell  short  of  his  account  by 
nearly  $200.  Soon  after  the  conveyance,  A.  repaid  the  loan, 
and  after  the  judgment  B.  paid  A.  a  small  sum  on  account. 
About  a  year  after  the  judgment,  A.  applied  for  a  settlement, 
and  B.  offered  him  ten  dollars  to  give  up  the  agreement  for 
reconveyance.  The  money  was  taken,  but  the  agreement  was 
not  given  up.  B.  regarded  this  as  a  final  settlement,  but 
there  was  no  proof  that  A.  so  regarded  it.  Soon  after,  A. 
died,  and  the  plaintiff,  succeeding  to  his  title,  brings  a  peti- 
tion to  redeem.  Held,  the  transaction  was  a  mortgage,  in 
view  of  its  purpose,  of  the  agreement  to  reconvey,  or  of  the 
relation  of  the  parties ;  and  the  alleged  settlement  was  no 
bar  to  this  petition.^ 

13.  It  is,  however,  remarked  by  a  writer  upon  this  subject, 
that,  "  if  the  mortgagor  sells  the  estate  to  the  mortgagee  for 
even  less  than  its  value,  whether  according  to  a  stipulation 
in  the  mortgage  or  not,  without  any  circumstances  of  fraud 
or  indirect  influence,  it  seems,  equity  will  not  relieve  hira. 
If  there  be  two  persons  ready  to  purchase,  the  mortgagee 
and  another,  the  mortgagor  stands  equally  between  them, 
and  if  the  mortgagee  should  refuse  to  convey  to  another  pur- 
chaser, the  mortgagor  can  compel  him,  by  applying  the  pur- 
chase-money, to  pay  off  the  mortgage.  It  can,  therefore, 
only  be  for  want  of  a  better  purchaser,  that  the  mortgagor 

1  Mills  V.  IVIills,  26  Conn.  213. 


80  THE   LAW   OF  MORTGAGES.  [CH.  IV. 

can  be  compelled  to  sell  to  the  mortgagee  ;  but  courts  view 
transactions  even  of  that  sort,  between  mortgagor  and  mort- 
gagee, with  considerable  jealousy,  and  will  set  aside  sales 
of  the  equity  of  redemption,  where,  by  the  influence  of  his 
incumbrance,  the  mortgagee  has  purchased  for  less  than 
others  would  have  given."  ^  And  it  has  been  held,  that, 
though  the  mortgagee  cannot,  by  the  mortgage  itself,  or  a 
deed  made  at  the  same  time,  reserve  the  right  of  purchasing 
the  estate  at  a  certain  price,  to  be  paid  the  mortgagor  if  he 
shall  not  redeem  within  a  limited  time  ;  yet  he  may  purchase 
the  right  of  redemption,  if  he  does  not  use  the  mortgage  in 
inducing  the  mortgagor  to  part  with  it  for  less  than  its  value.^ 
Also,  that  where  a  mortgagee,  after  recovering  the  land  for 
condition  broken,  for  a  further  consideration  obtains  a  re- 
lease of  the  equity,  at  the  same  time  giving  the  mortgagor 
a  promise  to  sell  and  convey  on  payment  of  the  whole  money 
within  a  certain  time ;  at  the  end  of  this  time  the  mortgagee's 
title  becomes  absolute.  The  latter  bargain  is  considered  as 
an  original  contract  to  convey  upon  certain  terms  ;  more 
especially,  after  the  lapse  of  so  long  a  period  as  sixteen  years.^ 
14.  In  the  leading  case  of  Tasburgh  v.  Echlin,*  (d)  the 
crown,  having  granted  a  patent  for  certain  land  for  a  term 
of  years,  at  a  certain  rent,  granted  another  patent  to  another 
person,  not  noticing  the  former.  The  former  term  having 
nearly  fifty  years  to  run,  and  being  worth  .£200  per  annum, 
the  second  patentee,  in  consideration  of  X200,  by  lease  and 
release  conveyed  to  the  first,  with  condition  that  he  might  re- 
enter upon  repayment  within  five  years  ;  but,  on  failure  of 
payment  at  the  time,  the  estate  of  the  grantee  should  be  ab- 
solute and  indefeasible,  both  in  equity  and  at  law,  and  the 

1  1  Pow.  123  a,  n. ;  Webb  v.  llorke,        -  Wrixon  v.  Cotter,  1  Ridg.  295. 
2  Sell.  &  Lef.  673  ;  Dougherty  v.  Mc-        *  Eudsworth  v.  Griffitli,  2  Abr.  Eq. 
Colgan,  6  Gill  &  J.  275.  595. 

*  2  Bro.  Pari.  205. 


((/)  This  case  is  said  to  have  been  "determined  on  circumstances  so  spe- 
cial, that  it  is  scarcely  an  authority  for  any  subsequent  case."  2  Greenl. 
Cruise,  t)7,  n.;  1  Pow.  133;  Coote,  30,  33. 


CH.   IV.]  REDEMPTION    CANNOT   BE   RESTRICTED.  81 

grantor  forever  debarred  from  all  right  and  relief  in  equity  ; 
and  the  grantor  hereby  released  forever  his  right  to  redeem, 
on  such  failure.  There  was  no  covenant  to  pay  the  X200. 
The  five  years  having  expired,  the  grantee  brings  a  bill  for 
foreclosure,  to  which  the  grantor  never  made  any  answer  or 
defence,  and  it  was  decreed  that  he  should  be  foreclosed, 
unless  the  money  were  paid  upon  a  certain  day.  More  than 
thirty  years  afterwards,  the  lands  having  risen  in  value,  the 
heirs  of  the  grantor  bring  a  bill  in  equity  against  the  heirs  of 
the  grantee,  alleging  surprise  and  imposition  in  procujing 
the  decree,  and  praying  redemption.  A  decree  was  rendered 
for  the  plaintiffs,  but  reversed  in  the  House  of  Lords.  The 
grounds  of  argument  for  the  defendants  were,  the  terms  of 
the  conveyance,  waiving  all  right  of  redemption  ;  the  rever- 
sionary character  of  the  estate,  yielding  no  present  profit,  and 
worth  at  the  time  not  over  X200;  and  the  want  of  any  cov- 
enant to  pay  the  money,  and  therefore  of  any  mutuality  in 
the  transaction,  which  is  necessary  to  constitute  a  mortgage. 
So  one  of  two  joint  tenants  made  a  conveyance  for  <£104, 
in  form  absolute,  but  admitted  to  be  a  mortgage.  This  deed 
was  cancelled,  and  another  similar  one  made  for  a  larger 
consideration,  including  the  <£104,  and  covenanting  that  the 
grantor  would  not  make  partition  without  consent  of  the 
grantee.  The  receipts  for  the  money  spoke  of  it  as  purchase- 
money.  Two  years  after  the  second  deed,  it  was  agreed  that 
the  grantor  should  have  back  the  land,  on  payment  of  prin- 
cipal, interest,  and  costs.  The  other  joint  tenant  being  in 
possession,  the  grantee  recovered  the  land  in  ejectment,  and 
occupied  sixteen  years.  Upon  a  bill  to  redeem,  brought  by 
the  grantor ;  held,  though  the  covenant  against  partition  was 
a  recognition  of  the  plaintiff's  remaining  interest  in  the  land, 
and  the  first  deed  was  admitted  to  be  a  mortgage,  yet  the 
transaction,  on  the  whole,  was  a  subsequent  agreement  for 
repurchase,  and,  after  the  lapse  of  so  many  years,  the  redemp- 
tion was  barred.^ 

1  Cotterelly.  Purchase,  Cas.  Temp.  Tal.  61.     See  Hunt  v.  Tyler,  2  Aiken, 


82  THE   LAW   OF   MORTGAGES.  [CH.  IV. 

15.  In  this  country,  the  doctrine  upon  the  subject  seems 
somewhat  unsettled.  The  Supreme  Court  of  the  United 
States  hold,  that  the  purchase  of  an  equity  of  redemption 
from  the  mortgagor,  by  the  mortgagee  in  possession,  especially 
if  the  former  is  in  needy  circumstances,  is  to  be  carefully 
scrutinized  when  fraud  is  charged ;  and  constructive  fraud, 
or  an  unconscientious  advantage,  is  sufficient  in  equity  to 
avoid  the  purchase.^  So  the  release  of  an  equity  of  redemp- 
tion and  surrender  of  a  defeasance  by  a  needy  mortgagor, 
for  no  consideration,  or  in  consideration  of  the  correction  of  a 
mistake  in  the  amount  due,  which  the  mortgagee  was  bound 
in  equity  to  correct ;  the  mortgagee  being  in  possession,  de- 
nying the  right  to  redeem,  and  having  originally  by  design 
so  drawn  the  defeasance  as  apparently  to  cut  off  the  right  of 
redemption  before  the  time  when  the  equity  was  released ; 
will  be  set  aside  in  equity .^  But,  the  mortgagor  having  filed 
his  bill  to  redeem,  nearly  twenty  years  after  the  mortgage 
became  due,  and  sixteen  years  after  the  release ;  held,  the 
account  of  the  rents  and  profits  should  be  restricted  to  the 
time  of  filing  the  bill.^ 

16.  Upon  the  same  subject,  the  Court  in  New  York  re- 
mark as  follows  :  —  "I  am  aware  of  no  principle,  which  in- 
hibits a  mortgagee  from  purchasing  in  an  outstanding  title, 
and  enforcing  it  against  his  mortgagor ;  on  the  contrary,  a 
defective  title  must  often  be  cured  in  this  way,  to  avoid  a 
loss  of  the  debt.  Actual  payments  of  prior  incumbrances 
entitle  the  mortgagee,  in  equity,  to  hold  till  the  mortgagor 
shall  reimburse  them  ;  and  in  some  cases,  if  the  mortgagee 
can  get  them  in  by  assignment,  he  superadds  a  legal  title, 
paramount  to  that  of  the  mortgagor,  and  valid  against  an 
ejectment.  The  effect  of  the  mortgagor's  repaying  the 
money  is  merely  to  avoid  the  effect  of  the  mortgage.  If  the 
mortgagee  have  acquired  a  paramount  title,  the  act  of  pay- 
ment will  not  inure  as  a  purchase  of  it.  As  between  mort- 
gagee and  mortgagor,  no  estoppel  (of  landlord  and  tenant) 

1  Russell  V.  Southard,  12  How.  130.  -  Ibid.  3  Ibid. 


en.   IV.]  REDEMPTION    CANNOT   BE   RESTRICTED.  83 

exists  against  the  latter.  The  mortgagee  is  rather  the  land- 
lord ;  the  mortgagor  being  in  strict  law,  considered  as  a  quasi 
tenant  at  will.  Whether  equity  might  not,  in  a  proper  case, 
consider  the  mortgagee  as  a  trustee,  and  on  that  ground  de- 
cree that  he  shall  stand  as  a  purchaser  for  the  mortgagor's 
benefit,  on  being  reimbursed,  is  another  question."  ^  And  it 
has  been  held  in  that  State,  that  a  mortgagee  may  by  a  con- 
tract subsequent  to  the  mortgage  purchase  the  equity  of  re- 
demption ;  though  the  transaction  will  be  viewed  with  sus- 
picion.2 

17.  In   New  Jersey,  where  a  mortgagee  knowingly  and 
.  understandingly  cancels  his  mortgage,  taking  instead  of  it  an 

absolute  deed ;  a  second  mortgage  will  have  precedence  of 
his  title  under  such  deed.^ 

18.  The  Court  in  Massachusetts  remark,  that  a  defea- 
sance may  upon  sufficient  consideration  be  cancelled  as  be- 
tween the  parties,  so  as  to  give  an  absolute  title  to  the  mort- 
gagee, the  rights  of  third  parties  not  having  intervened.* 
Thus,  where  a  bond  executed  at  the  same  time  with  the 
deed  was  two  years  afterwards  given  up,  and  a  new  bond 
substituted ;  it  was  held,  that  the  latter  constituted  a  mere 
personal  security,  and  the  grantee  became  absolute  owner.^ 
But  where  the  demandant  in  a  suit  for  foreclosure  produced 
a  conveyance  to  himself,  and  then  offered  evidence  of  the 
execution  and  existence  of  a  bond  of  defeasance  of  the  same 
date,  and  the  tenant  then  produced  a  bond  of  subsequent 
date  and  different  conditions  ;  held,  the  latter  was  not  of  it- 
self proof  that  the  former  had  been  cancelled  by  agreement, 
with  intent  to  render  the  conveyance  absolute.^  And  an 
assignment  of  such  bond  to  an  assignee  of  the  mortgage 
does  not  extinguish  the  right  of  redemption  ;  the  bond  being 
a  chose  in  action^  not  assignable,  and  the  law  not  allowing  a 
right  of  redemption  to  be  voluntarily  parted  with,  except  by 

1  Per  Cowen,  J,,  Cameron  v.  Irwin,  Harrison  v.  Pliillips,  &c.  12  Mass.  465  ; 

5  Hill,  280,  281.  Marshall   v.    Stewart,  17   Ohio,   356  ; 

^  Eemsen  v.  Hay,  2  Edw.  Ch.  535.  Youle  v.  Richards,  Saxt.  534. 
8  Frazee  v.  Inslee,  1  Green,  Ch.  239.  *  Eice  v.  Rice,  4  Pick.  352. 
*  Trull  V.  Skinner,  17  Pick.   213 ;        «  Stetson  v.  GuIUver,  2  Cush.  494. 


84  THE   LAAV   OP  MORTGAGES.  [CH.   IV. 

the  ordinary  forms  of  conveyance.  Hence,  after  such  as- 
signment, a  creditor  of  the  mortgagor  may  acquire  a  title  to 
the  land  by  the  levy  of  an  execution.^  In  the  same  State 
it  is  said,  no  case  can  be  found,  in  which  it  has  been  deter- 
mined that  the  mortgagee  can,  by  force  of  any  agreement 
made  at  the  time  of  creating  the  mortgage,  entitle  himself, 
at  his  own  election,  to  hold  the  estate  free  from  condition, 
and  cutting  off  the  right  in  equity  of  the  mortgagor  to  re- 
deem. Such  an  agreement  would  not  be  enforced  as  against 
a  mortgagor,  nor  is  it  to  be  confounded  with  a  sale  upon 
condition.^ 

19.  A  release  of  the  equity  of  redemption  has  been  implied 
from  a  new  agreement  between  parties  interested  in  the 
estate.  Thus  A.,  the  grantee  of  an  equity  of  redemption, 
B.,  the  mortgagee,  who  had  entered  for  foreclosure,  and  C, 
who  claimed  title  to  the  land,  entered  into  an  indenture,  by 
which  B.  released  to  the  others  his  right  to  foreclosure,  and 
agreed  to  collect  the  rents  and  divide  them  among  all  par- 
ties in  proportion  to  their  claims  against  the  mortgagor ; 
and  it  was  further  agreed  that  the  estate  should  be  sold  and 
the  proceeds  divided  in  the  same  way.  Held,  there  was  an 
implied  release  of  the  equity  of  redemption,  and  A.  could 
not  maintain  a  bill  to  redeem.^  (e) 

20.  In  Maine,  in  a  recent  case,  a  mortgagor  sold  to  the 
mortgagee,  for  cash,  the  right  of  redemption,  returning  to  the 
mortgagee  the  deed,  which  was  given  to  him  at  the  time  the 

1  Porter  v.  Millet,  9  IMass.  101.  ^  Tenney  v.  Blanchard,  8  Gray,  679.     . 

2  Per  Hubbard,  J.,  Waters  v.  Ran-  Jt 
dall,  6  Met.  484.                                                                                                      « 


(e)  A.  brings  a  bill  to  redeem.  B.,  a  co-tenant  of  A.,  answers  to  tlie  bill 
that  he  refused  to  join  in  the  suit,  aud  did  not  authorize  the  previous  ten- 
der ;  refers  the  validity  of  the  tender  to  the  court ;  and  states  liis  desire  to 
have  the  title  remain  with  the  defendant  ratlier  than  the  plaintiff.  Held, 
no  waiver  of  his  right  to  redeem,  and  that  a  decree  should  be  made  in  his 
favor,  he  sharing  the  costs  with  the  defendant.  Gentry  v.  Gentry,  1  Sneed, 
87.     Ace.  Cherry  v.  Bowen,  4  Sneed,  415. 


CII.    IV.]  REDEMPTION    CANNOT   BE   RESTRICTED.  85 

mortgage  was  made,  but  never  recorded.  The  mortgagee  took 
possession,  claiming  to  be  the  owner,  and  A.,  living  for  some 
years  afterwards,  often  stated  that  he  had  sold  the  land  to 
the  mortgagee.  Held,  after  his  death,  his  administrator 
might  maintain  a  bill  to  redeem.^ 

21.  In  Connecticut  it  is  held,  that,  where  the  subsequent 
purchase  from  the  mortgagor  is  made  under  an  appraisement 
of  the  property,  this  absence  of  any  unfair  terms  in  the  trans- 
action will  render  it  legally  valid.  Thus,  in  the  case  of  Austin 
V.  Bradley,^  Austin  conveyed  to  Bradley  certain  lands,  upon 
condition  that  the  grantor  should  indemnify  the  grantee  from 
certain  liabilities  on  his  account.  After  breach  of  condition, 
Bradley  agreed  to  accept  from  Austin  an  absolute  title,  and 
Austin  agreed  to  convey  to  him,  by  absolute  deed  of  war- 
ranty at  an  appraised  value ;  the  balance,  if  the  land  was  ap- 
praised to  exceed  the  debt,  to  be  paid  in  one  year  to  Austin. 
Austin  having  died,  the  balance  was  tendered  to  his  execu- 
tors within  the  year,  and  a  conveyance  demanded.  The 
plaintiffs,  children  and  legatees  of  Austin,  then  file  a  bill  in 
chancery  against  Bradley  to  redeem.  Held,  the  petition 
should  be  dismissed. 

22.  It  is  said,  in  Kentucky,  a  subsequent  conveyance  by 
the  mortgagor  to  the  mortgagee  "  must  be  fairly  done,  in  a 
transaction  that  will  bear  the  light,  and  upon  a  consideration, 
the  particulars  of  which  the  mortgagee  will  be  able,  at  least, 
to  state,  if  not  to  prove.  It  would  be  strange,  indeed,  if  the 
Court  of  Chancery,  which  so  carefully  guards  the  equity  of 
redemption  from  all  restraints  that  the  party  may  attempt  to 
impose  in  the  mortgage  which  creates  it,  or  in  any  other  con- 
temporaneous deed,  should  thenceforth  abandon  it  to  the 
arts  or  influence  of  the  mortgagee,  who,  having  already  a 
hold  upon  the  property  by  the  original  contract,  comes  into 
every  new  transaction  with  the  mortgagor  with  increased 
advantage."  ^ 

1  Patterson  v.  Yeatou,  47  Maine,  ''  Per  Marsliall,  J.,  Perkins  v.  Drye, 
308.  3  Dana,  177.     Ace.   Sheckell  v.   Hop- 

2  2  Day,  466.  kins,  2  Md.   Ch.  89;  Adams  v.  Mc- 

Kenzie,  18  Ala.  698. 


86  THE   LAW    OF   MORTGAGES.  fCH.    IV. 

23.  In  Michigan  the  distinction  is  taken,  that  the  mort- 
gagor may  release  the  equity  of  redemption  for  valuable  con- 
sideration, and  without  fraud  or  undue  influence.  But  an 
executory  contract  for  an  absolute  forfeiture,  in  case  the  debt 
is  not  paid  at  the  day,  will  not  be  enforced.^ 

23  a.  In  Ohio,  land  was  conveyed,  with  an  accompanying 
contract,  showing  the  conveyance  to  be  security  for  a  loan, 
the  amount  of  which  equalled  the  value  of  the  land.  The 
grantor  dying  insolvent,  his  administrators  relinquished  all 
title  to  the  land  for  payment  of  debts,  and  directed  the  grantee 
to  take  it  for  his  claim,  which  he  did,  taking  possession,  and 
never  demanding  payment  of  the  debt.  Some  of  the  heirs 
were  married  women.  Held,  after  twenty-seven  years,  the 
heirs  could  not  maintain  a  bill  to  redeem.^ 

24.  Upon  the  general  principle,  of  protection  to  mortgagors, 
equity  does  not  sanction  an  agreement  to  turn  interest  into 
principal  at  the  end  of  a  specified  period  ;  because  it  is  a 
stipulation  for  a  collateral  advanta^e^  and  because  it  tends  to 
usury,  though  not  actually  usurious.^  So  if  the  mortgagor 
agree  by  a  distinct  contract,  more  especially  one  subsequent 
to  the  mortgage,  though  in  writing,  to  pay  the  mortgagee  a 
sum  over  and  above  the  debt,  interest,  and  cost ;  such  con- 
tract will  be  set  aside  as  unconscionable  ;  for,  it  is  said,  a 
man  shall  not  have  interest  for  his  money,  and  a  collateral 
advantage  besides  for  the  loan  of  it,  or  clog  the  redemption 
with  any  bye  agreement.^  So,  where  a  note  is  secured  by  ' 
mortgage,  the  maker  cannot,  as  against  a  third  person,  own- 
ing the  equity  of  redemption,  increase  the  charge  upon  the 
land  by  confessing  a  judgment,  and  thus  compounding  the 
interest.^  (/)     So  where  a  person,  taking  a  mortgage  as  secu- 

1  Batty  V.  Snook,  5  Mich.  231.  •*  Jennings  v.  Ward,   2   Vern.  520; 

'''  rialt  V.  Smith,  12  Oliio,  St.  561.  Davis  v.  Jowett,  3  Iowa.  226. 

'^  Chambers  v.  Goldwin,  'J  Vcs.  271 ;  ^  McGreatly  v.  McGready,  17  Mis. 

Coote,  501,  602.     See  Godfrey  v.  Kog-  5'J7. 
ers,  3  Cal.  101. 


(/)  Where  by  statute  a  penalty  is  imposed  for  omitting  to  make  payment 
of  scliool  money  loaned  ;  it  is  held  to  be  imposed  only  on  the  borrower,  and 
not  secured  by  the  bond  or  mortgage.  Bradley  v.  Snyder,  14  111.  262.  See 
Broderick  v.  Smith,  25  Barb.  639. 


CH.  IV.]  REDEMPTION   CANNOT   BE   RESTRICTED.  87 

rity  for  a  loan,  took  from  the  mortgagor,  at  the  same  time,  a 
covenant  to  convey  to  the  mortgagee,  if  he  thought  fit,  cer- 
tain ground-rents  of  the  same  value  ;  upon  a  bill  to  redeem, 
held,  the  plaintiff  might  redeem  on  paying  the  sum  loaned, 
with  interest  and  costs.^  So  where  it  is  stipulated  that  the 
whole  debt  shall  become  due  upon  failure  to  pay  an  instal- 
ment, the  agreement  is  in  the  nature  of  a  penalty,  and  equity 
will  relieve  on  payment  of  the  instalment,  with  interest  and 
costs.2  And  the  distinction  is  made,  that  an  agreement,  that 
the  rate  of  interest  shall  be  raised  if  not  punctually  paid, 
is  treated  as  ^penalty,  and  will  be  relieved  against,  even  in 
case  of  gross  default.  But  an  agreement,  that  on  punctual 
payment  the  interest  shall  abate,  will  be  sustained,  if  strictly 
performed  ;  not  otherwise.^  And'the  agreement  for  an  abate- 
ment of  interest  will  not  be  defeated  by  a  single  breach  of 
it,  unless  the  terms  require  this  construction.  Thus,  in  the 
case  of  Stanhope  v.  Manners,''  it  was  agreed,  that  as  often  as 
the  interest  should  be  paid  half-yearly  on  the  appointed  days, 
or  within  three  months  next  after,  a  certain  deduction  should 
be  made.  The  first  half  year's  interest  was  not  paid  within 
the  time,  but  the  second,  at  the  reduced  rate,  was  tendered 
within  the  time,  and  refused.  Held,  the  agreement  was  not 
annulled  by  the  former  failure,  but  the  construction  should 
be,  that,  in  every  instance  where  the  tender  was  made  in  time, 
it  should  be  accepted.  But  if  the  increased  rate  of  interest 
*s  in  consideration  of  forbearance,  and  not  a  part  of  the  orig- 
inal agreement,  and  is  of  reasonable  amount,  it  seems  equity 
will  not  relieve.  The  forbearance  is  treated  as  equivalent  to 
a  further  advance.  Though  interest  cannot  be  converted 
into  principal  as  against  a  subsequent  charge,  of  which  the 
mortgagee  had  notice.^  So  a  stipulation,  in  a  mortgage, 
that,  upon  failure  to  pay  the  interest,  the  mortgagee  might 

1  Jennings  v.  Ward,  2  Vern.  520.  *  2  Ed.  199. 

2  Tiernan  v.  Hinman,  16  111.  400;  ^  Burton  v.  Slattery,  5  B.  P.  C.  233; 
Ferris  v.  Ferris,  28  Barb.  29.  See  Brown  v.  Barkham,  1  P.  Wins.  652; 
Broderick  v.  Smith,  15  How.  Pr.  434.  Coote,  502.     Ace.  Haggarty  v.  Allaire 

3  Coote,  511,  512.    See  Marquis,  «&c.  &c.  5  Sandf.  280. 
V.  Higgcns,  2  Vern.  134 ;  Mayo  v.  Ju- 

dah,  5  Munf.  495. 


88  THE    LAW    OF   MORTGAGES.  [CH.    IV. 

treat  the  mortgage  as  due,  bring  an  action  upon  -it,  and  also 
claim  damages,  was  held  a  valid  agreement.^  So  an  agree- 
ment, that  the  mortgagee  shall  have  the  use  of  the  property 
instead  of  interest,  is  not  usurious,  unless  such  use  amounts 
to  more  than  legal  interest.^  And  where  a  slave  was  mort- 
gaged, and  the  mortgagee  to  have  the  increase,  it  was  held 
that  the  agreement  was  not  usurious,  though  such  increase 
exceeded  legal  interest,  if  the  mortgagee  was  to  take  as 
donee,  and  not  on  account  of  the  loan,  and  this  might  be 
shown  by  parol  evidence."^ 

25.  But  even  if  an  agreement  of  this  nature  is  valid,  it  is 
said,  the  intention  of  the  parties  to  convert  interest  into  prin- 
cipal must  clearly  appear ;  and,  in  general,  by  some  WTiting 
under  their  hands.  It  is  ftot  enough  that  an  account  be 
stated  between  them.* 

26.  An  agi'eement,  subsequent  to  the  making  of  the  mort- 
gage, between  any  one  interested  as  mortgagee  and  the 
mortgagor  or  his  assignee,  to  limit  the  right  of  redemption 
to  any  certain  time,  is  held  invalid.  Thus  a  bill  in  equity  for 
a  foreclosure  was  brought  by  a  mortgagee  against  the  mort- 
gagor, and  his  creditors,  having  an  interest  in  the  right  of 
redemption.  A  decree  being  obtained,  the  defendant,  one 
of  the  creditors,  paid  and  took  an  assignment  of  the  mort- 
gage, and  agreed  with  the  other  creditors,  that  they  might 
redeem  within  a  certain  time.  The  defendant  had  posses- 
sion twenty  years,  and  the  other  creditors  file  a  bill  for  re-^ 
demption.  Held,  the  plaintiffs  stood  in  the  confidential  rela- 
tion of  mortgagor  to  the  defendant ;  and  the  decree  not  being 
assigned  to  him,  the  agreement  above  mentioned  was  void, 
and  the  plaintiffs  might  redeem.^ 

27.  The  same  general  principle  has  been  applied  to  the 
case  of  a  lease  from  mortgagor  to  mortgagee,  which  is  in  the 
nature  of  a  partial  surrender  of  the  equity  of  redemption. 
Thus  the  heirs  of  a  mortgagor  filed  a  bill  against  the  heirs 

1  Iluling  V.  TJrcxell,  7  Watts,  126 ;         »  Ibid. 
Ottawa,  &c.  V.  Murray,  15  111.  336.  *  Coote,  502. 

■^  Joyner  v.  Vincent,  4  Dev.  &  B.  512.        ^  E.xton  v.  Greaves,  1  Vern.  138.  .  * 


CIT.  IV.]  IIEDEMPTION   CANNOT   BE    RESTRICTED.  89 

and  executors  of  the  mortgagee,  to  set  aside  a  lease  made  by 
the  mortgagor  to  the  mortgagee,  charging  that  it  was  made 
at  a  gross  undervalue,  and  in  consequence  of  threats  of  fore- 
closure. Upon  two  issues  of  law,  ordered  by  the  Court,  the 
jury  negatived  both  these  averments.  But  Lord  Redesdule 
subsequently  decided,  that  the  issues  at  law  should  not  have 
been  ordered,  and  set  aside  the  lease  as  in  its  nature  usurious 
and  contrary  to  public  policy,  ordering  the  master  to  take  an 
account  of  principal  and  interest,  to  charge  the  defendants 
with  the  rent  up  to  the  first  day  of  payment  after  filing  the 
bill,  and  add  any  sums  paid  for  permanent  improvements, 
with  interest.^  So  where  an  absolute  deed  was  given,  with 
a  parol  agreement  to  reconvey  upon  payment  of  a  certain 
sum  ;  and  subsequently  the  grantee  leased  to  the  grantor, 
and,  in  order  to  conceal  the  true  nature  of  the  transaction, 
and  destroy  the  right  of  redemption,  covenanted  to  reconvey 
to  the  grantor  on  payment  of  a  certain  sum  of  money  by  a 
specified  time;  and,  after  this  time  had  elapsed,  he  conveyed 
to  a  third  person  having  notice  of  the  defeasance  :  held,  the 
transaction  constituted  a  mortgage ;  that  the  release  and 
covenant  did  not  impair  the  relation  of  the  parties  as  mort- 
gagor and  mortgagee ;  and  that  the  second  grantee  should 
reconvey  to  the  morgagor  on  payment  of  the  sum  due  in 
equity  upon  the  mortgage.  Bennett,  J.,  said:  —  "When 
there  is  an  attempt  to  set  up  such  an  instrument  as  an  abso- 
lute conveyance,  there  is  a  fraudulent  application  or  use  made 
of  it ;  and  this  is  a  proper  ground  upon  which  chancery  may 
proceed."  ^ 

28.  Upon  the  same  general  principle,  where  a  mortgagee 
obtains  the  renewal  of  a  lease  or  any  other  advantage  in 
consequence  of  his  mortgage,  the  mortgagor,  upon  redemp- 
tion, is  entitled  to  the  benefit  of  it.^  (g)     "  The  law  does  not 

1  Gubbins  v.  Creed,  2  Sch.  &  Lef.  ^  Slee  ?;.  Manhattan,  &c.  1  Paige,  48; 
214.  Coote,  429. 

^  Wright  y.  Bates,  13  Verm.  341,  .S49. 


{g)  The  general  principle  stated  in  the  text  has  been  applied  in  favor  of 
a  mortgagee,  as  well  as  a  mortgagor.     Thus,  if  the  mortgagor  allow  the  land 

8* 


90  THE   LAW    OF   MORTGAGES.  [CH.   IV. 

permit  the  mortgagor  to  be  tolled  of  his  equity  of  redemption 
by  such  a  shift."  ^  Thus  the  plaintiff  assigned  to  the  defend- 
ant, as  security  for  a  debt,  the  lease  of  a  farm.  Subse- 
quently, a  contract  was  made,  by  which  the  plaintiff,  in  con- 
sideration of  a  sum  expressed  but  not  paid,  agreed  to  give 
up  to  the  defendant  half  of  the  farm,  and  the  defendant  took 
possession,  surrendered  the  lease  to  the  landlord,  and  took  a 
new  lease.  Held,  the  plaintiff  might  redeem  the  whole  prem- 
ises, and  have  the  entire  benefit  of  the  new  lease.^ 

29.  Upon  a  similar  principle,  where  a  mortgagor's  estate 
has  been  sold  on  execution,  while  he  was  in  possession,  a 
subsequent  mortgagee  cannot  overreach  the  purchaser's  right 
of  redemption  by  an  absolute  release  to  him  from  the  mort- 
gagor, and  buying  in  an  old  incumbrance  ;  but  the  estate 
will  be  charged  with  the  actual  expense  of  buying  in  such 
incumbrance.^  [h) 

1  Per  Bennett,  J.,  Wright  v.  Bates,  ^  Miami,  &c.  v.  Bank,  &c.,  Wright, 
13  Verm.  350.  249. 

2  Holridge  v.  Gillespie,  2  Johns.  Ch. 
30. 

to  be  sold  for  taxes,  and  buy  it,  the  mortgagee  has  the  benefit  of  the  title. 
Fuller  V.  Hodgdon,  25  Maine,  243. 

(//)  An  execution  in  favor  of  a  bank  was  levied  upon  certain  slaves  of  the 
debtor,  who,  being  about  to  satisfy  it  by  payment  of  the  notes  of  that  bank, 
—  worth  only  fifty  per  cent,  of  their  par  value  —  was  prevented  from  doing 
so  by  the  representations  of  a  third  person,  that  such  payment  would  not  be 
good.  The  latter,  however,  by  an  agreement  with  the  debtor,  paid  the  exe- 
cution in  this  money,  and  took  one  of  the  slaves,  with  a  condition  of  restora- 
tion in  three  months,  upon  repayment  gf  the  sum  advanced.  Upon  a  bill  in 
equity,  filed  after  the  expiration  of  that  time,  the  Court  held  the  transaction 
was  a  mortgage,  and  decreed  a  redemption  upon  payment  of  one  half  the 
nominal  value  of  the  bank-notes  by  which  the  execution  was  discharged. 
May  V.  East  in,  2  Port.  414. 

A.  assigned  to  B.  a  bond  and  mortgage  given  by  C.  (as  security  for  debt.) 
A  suit  for  foreclosure  was  brought  by  A.  and  B.  against  C,  and  at  a  sale  on 
execution  the  land  was  bought  by  B.  for  a  sum  less  than  the  original  mort- 
gage debt,  and  less  than  the  debt  from  A.  to  B.  Held,  after  payment  of  the 
debt  due  to  B  ,  he  held  in  trust  for  the  benefit  of  A.  Hoyt  v.  Martense,  16 
N.  Y.  (2  Smith),  231. 

On  tlie  day  of  a  sale  on  execution,  the  plaintiff  and  defendant  executed 


CH.   IV.]  REDEMPTION   CANNOT   BE   RESTRICTED.    ,  91 

30.  In  the  case  of  Price  v.  Price,^  the  conveyance  was  in 
in  form  absolute,  but  the  real  consideration  was  a  sum  of 
money  paid  to  the  creditors  of  the  grantor.  Upon  a  bill  filed 
for  reconveyance,  the  grantee  claimed  the  benefit  of  the  secu- 
rities as  mortgagee.  The  Court  held,  that  he  had  mixed  up 
the  characters  of  trustee,  mortgagee,  and  agent,  and  decreed 
an  account  without  allowing  interest  on  either  side  ;  and 
though  a  small  balance  was  found  due  him,  yet  on  further 
directions  the  Court  refused  to  allow  him  interest  on  it,  and 
decreed  a  reconveyance  and  payment  of  the  balance  then 
become  due  from  him,  and,  he  having  lost  some  of  his  vouch- 
ers, refused  him  the  costs  of  taking  the  account. 

31.  The  following  case,  somewhat  remarkable  and  noto- 
rious for  the  amount  of  property  involved,  the  length  of  time 
and  variety  of  forms  in  which  it  was  litigated,  and  the  learn- 

1  15  L.  J.  Chanc.  13  N.  S. 


a  written  agreement,  under  which  the  plaintiff  agreed  to  purchase  in  the 
property,  and  to  reconvey  that,  and  other  property  bought  by  him  at  similar 
sales,  to  the  defendant.  Held,  this  was  only  a  temporary  privilege  to  the 
defendant,  and  the  plaintiff  did  not  hold  the  lands  as  mortgagee.  Price  v. 
Evans,  26  Mis.  30.  One  joint  tenant  sold  the  land,  and  took  a  mortora^e 
for  the  purchase-money,  and  afterwards  proceeded  to  a  judgment,  and  sale 
of  the  mortgagor's  rights  on  the  mortgage,  and  purchased  the  premises  him- 
self Held,. this  did  not  give  him  a  new  title  on  his  own  account.  Jack  v. 
Woods,  29  Penn.  375.  A  religious  society  was  desirous  of  purchasing  a  lot  of 
land,  but  the  owner  was  unwilling  to  sell  it  to  them  ;  and  thereupon  A.,  one 
of  the  trustees,  purchased  the  land  on  his  own  account,  giving  back  a  mort- 
gage for  the  purchase-money.  Afterwards  A.  sold  it  to  the  society,  and  took 
back  from  them  a  mortgage.  A.'s  mortgage  to  the  vendor  not  being  paid, 
A.  foreclosed  the  mortgage  to  himself,  and  at  the  sale  bid  the  premises  in 
himself,  and  afterwards  died.  The  vendor  assigned  to  B.  the  mortgage 
given  to  him  by  A.,  who  was  proceeding  to  foreclose  the  same,  when  the 
society  applied  for  an  injunction,  and  prayed  that  the  mortgage  from  them 
to  A.  might  be  declared  void,  or  they  be  let  in  to  redeem,  and  for  other 
relief  Held,  that  A.  had  a  right  to  purchase  the  land  from  the  original 
vendor ;  that  he  was  not  acting  as  trustee  for  the  society,  and  that  the  fore- 
closure by  A.  of  his  mortgage  from  the  society  was  valid,  and  a  bar  to  their 
right  of  redemption.     South,  &c.  v.  Clapp,  18  Barb.  35. 


92  THE    LAW   OF   MORTGAGES.  [CH.    IV. 

ing  and  ability  displayed  in  its  discussion  and  adjudication, 
serves  to  illustrate  many  of  the  topics  considered  in  this 
chapter. 

32.  On  or  about  June  13,  1823,  one  Frye,  as  guardian,  by 
license  of  Court,  conveyed  certain  lands  to  Luther  Richard- 
son, who,  on  the  14th  of  May,  1825,  quitclaimed  them,  sub- 
ject to  incumbrances,  to  Prentiss  Richardson,  his  brother, 
upon  a  secret  parol  trust  for  himself.  May  6,  1826,  the  two 
Richardsons,  with  the  wife  of  Prentiss,  for  the  nominal  con- 
sideration of  $2,000,  quirclaimed  to  Walker  and  Fisher,  who 
gave  back  a  bond  for  $10,000  to  Luther,  reciting  that  he  had 
quitclaimed  to  the  obligors,  and  stipulating  to  reconvey  to 
him  whenever,  within  five  years,  he  should  repay  what  they 
expended  in  discharging  incumbrances  and  making  improve- 
ments. At  the  same  time,  they  leased  to  him  a  part  of  the 
land  for  five  years,  for  the  annual  rent  of  one  cent,  unless 
there  should  be  a  previous  redemption,  agreeably  to  the  bond. 
On  or  before  May  13,  1831,  the  land  was  claimed  by  Frye's 
heirs,  upon  the  ground  of  an  invalidity  in  the  guardian's 
sale.  Soon  afterwards,  the  plaintifl  and  Mann,  one  of  the 
defendants,  agreed  by  parol  to  purchase  at  their  joint  ex- 
pense, and  for  then-  joint  use,  the  title  of  Luther,  and  to 
extinguish  the  claims  of  Walker  and  Fisher,  and  of  the  Frye 
heirs,  on  their  equal  and  joint  account;  which  agreement 
was  never  abandoned.  May  13,  1831,  the  plaintiff  and 
Mann,  in  pursuance  of  this  agreement,  received  a  quitclaim 
deed  from  Luther,  and  an  assignment  of  the  bond  from 
Walker  and  Fisher.  July  27,  1831,  Walker  and  Fisher 
quitclaimed  to  Mann  alone  ;  and  afterwards  the  Frye  heirs 
quitclaimed  to  Adams.  August  6,  1831,  Mann  and  Adams 
severally  quitclaimed  to  each  other  one  moiety  of  the  prem- 
ises and  of  their  respective  interests  therein.  August  8, 1831, 
Mann  quitclaimed  his  moiety  to  Fuller  for  $40,000,  and 
Fuller  mortgaged  back  to  Mann,  as  security  for  four  notes 
of  $10,000  each,  given  for  the  price.  The  plaintiff  brings  a 
bill  in  equity,  to  set  aside  the  deeds  of  Mann  to  Adams 
and  to  Fuller,  as  a  fraud  upon  the  plaintiff,  and  for  a  recon- 


I 


CH.   IV.]  REDEMPTION   CANNOT   BE   RESTRICTED.  93 

veyance  of  one  moiety  of  the  premises  to  the  plaintiff,  upon 
payment  by  him  of  a  moiety  of  the  sums  paid  in  perfecting 
the  title.  Held,  the  deed  to  Walker  and  Fisher  and  their 
accompanying  bond,  being  parts  of  the  same  transaction, 
were  to  be  treated  as  if  contained  in  one  instrument ;  and 
being  in  reality  designed  for  security,  and  showing  an  at- 
tempt to  evade  the  law  relating  to  mortgages,  constituted  an 
equitable  mortgage  to  Walker  and  Fisher  for  their  advances, 
and  not  a  conditional  purchase,  which  requires  a  sale  for 
valuable  consideration  ;  that  this  construction  was  fortified 
by  the  fact,  that  the  grantees  were  not  to  have  immediate 
possession,  and  that  a  fair  price  for  a  purchase  of  the  land 
was  not  paid ;  that  Luther,  when  he  conveyed  to  Flagg  and 
Mann,  had  an  equity  of  redemption  sufficient  in  a  court  of 
equity  to  make  the  parties  tenants  in  common,  and  create 
between  them  a  privity  of  title  and  estate  ;  and  a  decree  for 
relief  of  the  plaintiff  was  passed,  having  reference  to  the  re- 
spective rights  and  liabilities  of  the  several  defendants,  as 
depending  upon  their  various  interests  in  the  property,  ac- 
cording to  the  above  statement.^ 

33.  Substantially  the  same  rules  have  been  applied  to  the 
conditional  assignment  of  a  mortgage  itself,  which  have  been 
stated  above,  as  established  for  the  protection  of  mortgagors 
against  any  restriction  of  the  right  of  redemption.  Thus 
there  was  an  assignment  of  a  mortgage,  provided,  that,  if 
certain  receipts  shall  amount  to  $300,  the  assignee  shall  re- 
assign, and  account  for  the  excess  above  that  sum ;  if  they 
fall  short  of  such  sum,  and  unless  the  assignor  in  one  week 
pay  the  deficiency,  the  assignment  to  be  absolute.  The  re- 
ceipts were  less  than  $300.  Held,  equity  would  decree  a 
redemption  upon  making  up  this  sum,  the  transaction  being 
a  mortgage  or  pledge,  not  a  conditional  sale.^  So  in  the 
case  of  Clark  v.  Henry ,^  the  plaintiff  was  indebted  to  the 
defendant  upon  promissory  notes  for  $225,  and  executed  to 
him  an  assignment,  in  terms  absolute,  of  a  mortgage  held  by 

1  Flagg  V.  Mann,  2  Sumn.  486.  »  2  Cow.  324,  331 ;  S.  C.  7  Johns. 

2  Solomon  v.  Wilson,  1  Wliart.  241.     Ch.  40. 


94  THE   LAW    OF   MORTGAGES.  [CH.  IV. 

the  plaintiff  against  one  Davis,  for  $1,065,03.  The  notes 
were  destroyed  by  the  parties,  and  the  defendant  gave  the 
plaintiff  a  written  agreement  to  sell  him  the  mortgage,  if  he 
would  pay  the  defendant  $225  by  a  certain  day.  Several 
times  previous  to  this  day  the  defendant  declared  that  he 
held  the  assignment  as  security  for  his  debt.  Payment  not 
being  made  at  the  day,  the  plaintiff  brings  a  bill  in  equity  to 
redeem.  Held,  the  assignment  was  not  a  conditional  sale, 
but  a  mortgage;  and  the  plaintiff  entitled  to  redeem,  upon 
payment  of  the  $225,  and  interest.  In  giving  the  opinion 
of  the  Court,  Woodworth,  J.,  remarks  :  ^  —  "  The  case  war- 
rants the  inference,  that  Clark  supposed  the  papers  were  so 
drawn  as  to  defeat  the  right  of  redemption,  if  there  was  a 
failure  of  payment,  and  that  the  word  '  sell '  was  inserted, 
instead  of  the  more  appropriate  term  reassign,  so  as  thereby 
to  obtain  a  mortgage  of  $1,065  for  the  inadequate  consider- 
ation of  $225.  The  whole  operation  seems  to  be  devised 
for  the  purpose  of  overreaching  an  ignorant  man  who  could 
neither  read  nor  write.  There  cannot,  however,  be  any  doubt 
that  the  writing  executed  by  the  appellant  was  per  se  a  de- 
feasance merely.  On  what  terms  was  the  appellant  to  sell  ? 
Not  for  the  value  of  the  security,  but  for  the  amount  of  the 
original  debt,  not  equal  to  one  fourth  of  the  mortgage.  This 
speaks  a  language  not  to  be  mistaken.  The  instrument 
must  be  construed  as  a  covenant  to  reassign." 

1  2  Cow.  331. 


en.  v.]  CONDITIONAL   SALE.  95 


CHAPTER  V. 

CONDITIONAL    SALE,   AS   DISTINGUISHED   FROM    A    MORTGAGE. 

1.  There  is  a  certain  description  of  conveyance,  similar 
in  form  to  a  mortgage,  but  to  which  the  rule  against  restrict- 
ing the  right  of  redemption  is  not  applicable  ;  to  wit,  a  sale 
with  an  agreement  to  repurchase,  or,  as  it  is  usually  termed,  a 
conditional  sale,  {a) 

2.  "A  mortgage  and  a  conditional  sale  are  nearly  allied 
to  each  other.  The  difference  between  them  is,  that  the  for- 
mer is  a  security  for  a  debt,  and  the  latter  is  a  purchase  for 
a  price  paid,  or  to  be  paid,  to  become  absolute  on  a  particu- 
lar event ;  or  a  purchase  accompanied  by  an  agreement  to 
resell  upon  particular  terms.  The  only  difficulty  is,  to  as- 
certain the  character  of  the  transaction.  When  it  is  once 
determined  to  be  a  mortgage,  all  the  consequences  of  ac- 
count, redemption,  and  the  like,  follow,  notwithstanding 
any  stipulation  to  the  contrary.  For  the  power  of  redemp- 
tion is  not  lost  by  any  hard  conditions  ;  nor  shall  it  be  fet- 
tered to  any  point  of  time,  not  according  to  the  course  of  the 
Court."  1 

3.  Various  circumstances  have  been  resorted  to,  for  the 
purpose  of  determining  whether  a  particular  conveyance 
should  fall  within  one  or  the  other  of  these  classes.  The 
precise  language  used  is  generally  held  of  little  consequence. 
Thus,  the  words  "  redeem,"  (b)  "  repurchase,"  &c.,  may  have 

1  Per  Ruffin,  J.,  Poindexter  v.  McCannon,  1  Dev.  Eq.  375,  376. 


(a)  The  civil  law  recognized  the  distinctioa  between  mortgages  and  con- 
ditional sales.     2  Story's  Eq.  §  1019. 

(6)  In  the  case  of  Robinson  v.  Cropsey,  2  Edw.  Ch.  138,  a  transaction 


96  THE   LAW    OF   MORTGAGES.  [CH.    V. 

one  or  another  signification,  according  to  the  circumstances 
of  each  case,  (c)  The  relative  situation,  and  the  precedent, 
accompanying,  and  subsequent  acts  of  the  parties  are  regard- 
ed as  of  much  more  importance.  The  leading  incidents  of  a 
mortgage  are  these :  the  relation  of  debtor  and  creditor,  (d) 


was  held  to  be  a  conditional  sale  and  not  a  mortgage,  although  there  was  an 
express  agreement  that  the  vendor  might  redeem  by  paying  a  certain  sum 
in  one  year,  and  the  cost  of  intermediate  improvements,  if  any,  upon  the 
buildings;  but,  if  there  should  be  no  sale,  that  he  should  not  have  the  use 
of  the  farm ;  upon  the  ground,  that  it  was  evident  from  the  whole  transac- 
tion, that  the  parties  intended  an  entire  discharge  of  the  debt,  which  fully 
equalled  the  value  of  the  land  at  that  time.  By  a  singular  but  probably 
legitimate  construction,  an  express  agreement,  that  there  shall  be  no  right 
of  redemption  beyond  a  fixed  time,  has  been  regarded  as  one  mark  of  a  mort- 
gage ;  the  agreement  being  invalid  as  such,  but  effectual  to  show  the  nature 
of  the  transaction.  Murphy  v.  Galley,  1  Allen,  109.  In  the  case  of  Cham- 
bers V.  Hise,  2  Dev.  &  Bat.  Eq.  305,  the  plaintiff  brought  a  bill  in  equity  to 
redeem  certain  negroes,  transferred  by  him  to  the  defendant  by  a  common 
bill  of  sale,  with  this  condition  :  "  If  tlie  said  Jacob  Hise  is  not  satisfied  with 
the  said  negroes,  or  if  the  said  negroes  are  not  satisfied  with  the  said  Ilise, 
then  the  said  Chambers  has  privilege  and  authority  to  redeem  the  said  ne- 
groes, at  any  time  that  he  shall  pay  or  cause  to  be  paid  to  the  saiil  Jacob 
Hise  the  S300,  or  a  negro  girl  to  the  satisfaction  of  the  said  Hise."  The  sub- 
scribing witness  deposed,  that  the  parties  intended  only  what  appeared  on 
the  face  of  the  instrument;  and  there  was  no  evidence  that  the  transaction 
was  a  loan.  It  was  held  by  the  Court,  that  the  paper  was  not  on  its  face  a 
mortgage,  and,  there  being  nothing  else  shown  in  the  case  to  make  it  one, 
that  the  bill  should  be  dismissed. 

(c)  An  agreement  by  a  purchaser,  subsequent  to  the  deed,  to  resell  at  the 
same  price  in  a  certain  time,  does  not  make  the  transaction  a  mortgage. 
Mason  v.  Moody,  26  Miss.  184. 

(f/)  Upon  this  point,  the  following  remarks  of  the  Court  in  a  late  case  in 
New  Hampshire  are  suggestive,  and  worthy  of  consideration,  although  the 
general  rule  to  which  they  tend  can  hardly  be  considered  as  the  one  estab- 
lished by  the  weight  of  authority:  —  "Early  definitions  of  mortgages  are 
found,  wliere  no  other  conditional  conveyances  are  regarded  as  mortgages, 
but  such  as  are  made  for  the  security  of  a  loan  of  money.  At  another  date, 
we  find  the  equitable  doctrines  as  to  mortgages  extended  to  all  cases  where 
the  conveyance  is  a  security  for  any  debt,  and  the  most  modern  notion  is  to 
apply  the  same  doctrines  to  cases  generally,  where  conditional  deeds  are 


CHAP,  v.]  CONDITIONAL    SALE.  97 

and  the  continuance  of  a  debt  between  them  ;  retaining  of 
possession  by  the  grantor ;  in  a  doubtful  case,  great  excess 
of  value  in  the  property  over  the  consideration  paid;  —  al- 
though this  has  been  held  not  of  itself  to  raise  the  presump- 
tion of  a  mortgage.  On  the  other  hand,  the  necessitous  con- 
dition of  the  grantor  ;  the  connection  of  a  third  person  with 
the  transaction  ;  (e)  the  reservation  of  a  power,  on  the  part 
of  the  grantor,  to  annul  the  bargain,  or  to  the  grantee  of  a 
right  to  buy  the  land  absolutely  ;  (/)  the  lapse  of  a  long  pe- 


made  as  a  security  for  the  performance  of  a  contract.  But  upon  considera- 
tion it  will  be  seen  that  this  principle,  though  generally  true,  can  have  no 
application  to  any  other  contracts  than  such  as  by  their  non -performance 
create  a  debt,  or  a  demand  in  nature  of  a  debt,  against  the  delinquent  party. 
Whenever  the  condition,  when  broken,  gives  rise  to  no  claim  for  damages 
whatever,  or  to  a  claim  for  unliquidated  damages,  the  deed  is  not  to  be  re- 
garded as  a  mortgage  in  ecjuity,  but  as  a  conditional  deed  at  common  law. 
It  has  the  incidents  of  a  mortgage  only  to  a  limited  extent,  and  the  party,  if 
relieved  by  a  court  of  equity  from  the  forfeiture  resulting  from  the  non-per- 
formance of  the  condition,  will  not  be  relieved  as  in  cases  of  a  mortgage." 
Per  Bell,  C.  J.  Bethlehem  v.  Annis,  40  N.  II.  39,  40.  Conformably  with 
these  views,  a  deed  conditioned  for  the  support  of  the  grantee  was  held  not 
to  be  mortgage,  but  a  conditional  sale  ;  not  assignable,  although  not,  on  the 
other  hand,  involving  a  strict  forfeiture  for  breach  of  condition.   'Ibid.  34. 

(e)  In  the  case  of  Peri-y  v.  Meddowcroft,  4  Beav.  197,  the  purchase- 
money  of  an  estate  was  paid  by  a  third  person  on  behalf  of  the  purchaser, 
and  a  further  sum  advanced,  with  an  agreement  that  the  deed  should  be 
made  to  the  third  person,  and,  if  the  purchaser  repaid  the  money  with  inter- 
est by  a  certain  day,  the  agreement  to  be  void  ;  otherwise  the  sale  was  there- 
by absolutely  confirmed  to  the  other  party.     Held,  a  conditional  purchase. 

(/)  Land  was  conveyed  by  an  absolute  deed,  and  on  the  same  day  a 
covenant  executed  by  the  grantee,  reciting  that  the  deed  was  given  for  the 
purpose  of  pajing  a  specified  sum,  and  agreeing  not  to  transfer  the  land 
within  one  year  without  the  grantor's  consent,  and  if  the  latter  should  with- 
in that  time  find  a  purchaser,  he  would  convey  to  him,  on  receiving  the 
sum,  with  interest,  for  which  the  land  had  been  conveyed  to  him ;  and  if 
such  sale  should  not  be  made  within  the  year,  it  should  be  left  to  certain 
persons  to  determine  what  further  sum  he  should  pay  the  grantor  for  the 
land,  which  sum  he  covenanted  to  pay.  The  grantee  brings  ejectment 
against  the  grantor  for  the  land.  Held,  the  conveyance  was  not  a  mortgage, 
and  the  action  could  be  maintained.     Baker  v.  Thrasher,  4  Denio,  493. 

VOL.   I.  9 


98  THE   LAW    OF   MORTGAGES.  [CHAP.  V. 

riod  before  any  claim  to  redeem ;  (g-)  the  approximation  of 
the  consideration  paid  to  the  cash  value  of  the  property  ;  (h) 
the  sm-render  of  personal  secm-ities;  (i)  or  tlie  absence  of  any 
agreement  to   repay   the    purchase-money,  (j)    making   the 

(g)  As  where  there  was  an  absolute  deed,  and  a  writing  back,  giving  the 
right  to  repurchase  within  three  years,  and  more  than  half  the  period  of  the 
statute  of  limitations  elapsed  without  any  attempt  to  redeem.  More  especial- 
ly will  redemption  be  denied  in  such  case,  where  the  securities  are  given  up, 
a  full  y)rice  paid,  and  the  grantee  has  apparently  in  good  faith  sold  the  land. 
Mellisli  V.  Robertson,  25  Verm.  603. 

(h)  In  the  case  of  Williams  j;.  Owen,  10  Sim.  386;  5  M.  &  Cr.  306,  an, 
estate  was  conveyed  absolutely  in  consideration  of  i550,  (the  value  of  the 
property,)  and  an  agreement  given  back,  that,  if  the  grantor  repaid  this  sum 
and  the  cost  of  the  conveyance  within  a  year,  the  grantee  would  reconvey, 
having  his  option  either  to  retain  the  intermediate  rents  or  to  receive  inter- 
est.    Held,  a  conditional  sale. 

After  two  successive  mortgages  to  different  persons,  the  mortgagor  con- 
veyed in  fee  to  the  first  mortgagee.  The  deed  recited,  that  the  debt  of 
the  grantee  was  due,  and  that  the  mortgagor  had  agreed  to  convey  to  him 
absolutely,  subject  to  the  payment  by  the  grantee  of  the  second  mortgagee's 
debt.  This  debt  was  accordingly  paid.  The  grantor  took  back  an  agree- 
ment from  the  grantee,  that,  upon  the  grantor  or  his  heirs  paying  the  grantee 
or  his  heirs,  at  the  end  of  two  years,  the  sum  named  in  the  deed,  the  grantee 
or  his  heirs  would  convey  to  the  grantor.  It  was  further  expressed,  that  the 
grantor  should  pay  the  grantee  one  hundred  and  twenty-five  dollars  per 
year.  Two  months  afterwards,  the  grantor  executed  the  following  release  : 
"  All  my  right  and  claim  in,  &c.,  that  I  have  deeded  to,  &c.,  and  I  give  him 
possession,"  which  was  taken  by  the  grantee.  The  right  of  redemption  was 
worth  from  fifteen  hundred  to  two  thousand  dollars,  and  the  purchase 
made  for  sixteen  hundred  dollars.  No  compulsory  measures  were  taken  or 
threatened  by  the  grantee  against  the  grantor.  No  covenant  or  obligation 
remained  on  the  part  of  the  grantor.  Held,  a  conditional  sale.  Hicks  v. 
Hicks,  5  Gill  &  J.  75. 

((■)  In  the  case  of  Holmes  v.  Grant,  8  Paige,  243,  a  debtor  conveyed  his 
farm  to  his  creditor  for  the  amount  of  the  debt,  which  was  about  the  value 
of  the  farm,  by  a  warranty  deed,  and  the  grantee  surrendered  and  discharged 
his  securities  for  the  debt,  and  the  same  day  gave  the  grantor  a  written 
agreement,  that,  if  the  grantor  could  find  a  purchaser  for  the  farm  within  one 
year,  he  might  have  all  he  could  obtain  beyond  the  debt,  with  interest.  It 
was  held,  that  this  transaction  was  not  necessarily  a  moi-tgage,  everi  though 
the  agreement  were  given  simultaneously  with  the  deed,  and  in  virtue  of  a 
previous  bargain  theretbr. 

(y)  This  fact  is  held  not  to  be  decisive.     Russell  v.  Southard,  12  How. 


CII.  v.]  CONDITIONAL    SALE.  99 

grantor's  right  to  repurchase,  and  the  grantee's  right  to  re- 
cover the  price,  mutual  and  reciprocal ; — (A)  are  circumstances 
which  favor  the  construction  of  the  transaction  as  a  condi- 
tional sale.^  (/)      The  question  as  to  the  nature  of  tlie  con- 

1  Slee  V.  Manhattan  Co.  1  Paige.  56  ;  son  v.  Cropsey,  2  Eclw.  146  ;  Wright  v. 

Glover  r.  Tayn,  19  Wend.  518 ;  Poin-  Bates,    13    Verm.   350;    3    Alk.    278; 

dexter  v.  McCannon,  1  l)ev.  Eq.  373 ;  Holmes    ;;.    Grant,    8    Paige,    243  ;    2 

Bacon  v.  Brown,  I'J  Conn.  29  ;  llobiu-  Barb.  28 ;  Goodman  v.  Grierson,  2  Ball 


139.     Tlie  promise  may  be  a  parol  one.     Hills  v.  Elliot,  16  Mass.  33.     See  • 
Scott  V.  Britton,  2  Yerg.  215. 

(k)  In  Goodman  v.  Grierson,  2  Ball  &  B.  274,  it  was  held  by  Lord  Man- 
ners, that,  where  the  trustees  of  a  settlement  of  £1,000  portion,  charged  on 
estates,  accepted  part  of  the  estate  "in  lieu  and  satisfaction"  of  the  £1,000, 
with  power  for  the  owner  of  the  estate  to  reassume  the  premises  at  any  time 
within  ten  years,  on  payment  of  that  sum ;  the  transaction  was  a  conditional 
sale,  because  the  trustees  had  no  remedy  for  the  deficiency,  if  the  estate 
proved  insufficient. 

Where  the  owner  of  land  conveyed  it,  in  order  that  the  grantee  mioht 
be  able  to  sell  it,  account  with  the  grantor  for  a  certain  sum,  and  retain 
the  balance  for  his  services ;  and  afterwards  the  grantee  reconveyed,  pro- 
vided that  if  he  paid  the  grantor  the  sum  above  mentioned  the  deed  should 
be  void  ;  the  transaction  was  held  not  a  mortgage,  but  a  conditional  sale. 
In  this  case,  the  Court  remark  :  "  Turner  was  the  mere  agent  of  Porter 
to  sell  the  land,  and  was  to  have  for  his  trouble  what  he  could  obtain 
above  two  thousand  dollars.  There  was  no  debt  due  from  Turner  to  Por- 
ter for  which  the  land  was  put  in  pledge.  Turner  had  undertaken  to  do 
no  act  for  the  performance  of  which  the  land  was  mortgaged.  Turner 
was  to  be  the  purchaser  in  case  he  could  sell,  and  in  that  case  alone."  Por- 
ter V.  Nelson,  4  N.  H.  130.  In  Baxter  v.  Willey,  9  Verm.  276,  it  ap- 
peared that  the  defendant  executed  to  the  plaintiff  the  promissory  note 
upon  which  the  action  was  founded,  with  two  others,  and  conveyed  to  him 
certain  land  in  Canada,  but  did  not  take  up  the  notes  ;  that  the  plaintiff 
then  gave  back  to  the  defendant  a  writing,  stating  that  the  deed  was  made 
in  payment  of  these  notes,  but  agreeing  to  reconvey,  if  at  the  end  of  two 
years  the  defendant  would  pay  the  amount  of  the  notes  with  interest.  This 
writing  was  transferred  to  others  for  a  valuable  consideration,  and  had  since 
been  lost.  The  defendant  was  to  retain  possession  during  the  two  years. 
Evidence  was  offered,  that  the  plaintiff  had  acknowledged  the  notes  were 
paid.  Held,  the  action  could  not  be  maintained,  because,  by  the  laws 
of  Canada,  the  defendant  would  have  no  equity  of  redemption  in  the  land. 

(J)  The  relation  of  landlord  and  tenant  is  consistent  with  that  of  mort- 


100  THE   LA»V   OF   MOllTGAGES.  [CH.  V. 

veyanee  is  a  question  of  fact  and  intent  for  the  jury.^ 
Though  it  is  sometimes  held  that  parol  evidence  is  not  ad- 
missible to  convert  a  mortgage  into  a  conditional  sale.- 

4.  Gibson,  Ch.  J.,  says  :^  "It  is  too  late  to  say  that  what 
was  intended  to  be  security  for  a  loan  may  become  a  condi- 
tional sale  by  the  accidental  form  of  the  transaction ;  or,  that 
an  agreement  to  make  it  such,  in  default  of  payment  at  the 
day,  shall  not  be  relieved  against,  or  that  a  jury  are  not  the 
proper  judges  of  the  intention,  or  that  a  purchaser,  with  a 
part  of  the  purchase-money  in  his  hands,  may  be  protected 
beyond  reimbursement." 

5.  A  sale  with  an  agreement  to  repurchase,  though  nar- 
rowly watched,  is  construed  like  any  independent  agreement 

&  B.   274;    Conway  v.    Alexander,  7  505;  Davis  r.  Stonestreet,  4  Ind.  101  ; 

Crancli,  218 ;  Dougherty  I'.  McColjijan,  Stoiney  v.   M'Miirray,    27    Mis.    113; 

6  G.  &  Jolins.  275;  Coles  v.  Perry,  7  Jones  v.  Jones,  1  Head.  (Tenn.)  105. 
Tex.    lO'J  ;    Kussell    v.    Southard,    12        i  Gaither  v.    Teague,  7   Ired.  4G0 ; 

How.  13y ;  Streator  v.  Jones,  3  Hawks,  Kunkle    v.    Wolfersberger,    (5    Watts, 

423;  Hopkins  v.  Stephenson,    1  J.  J.  131  ;    Page  v.   Foster,   7  N.   H.    392; 

Marsh.  341 ;  Oldham  v.  Halley,  2  J.  J.  Mason  v    Moody,  2G  Miss.  184;  Wil- 

Marsh.   113;    Edrington  v.  Harper,  3  lianis  r.  Bishop,  15  111.  553. 
J.   J.  Marsh.  353  ;    Robinson    i--.  Far-        -  Woods  v.  Wallace,  22  Penn.  171. 
rellv,  l(j  Ala.  472  ;    Gait  v.  Jackson,         ^  Kunkle  v.  Woltersberger,  6  Watts, 

9    Geo.    151  ;    Hoopes    v.   Bailey,    28  131. 
Miss.  328  ;  Bayley  v.  Bailey,  5  Gray  ; 


gagor  and  mortgagee.  Hence  a  lease  does  not  change  a  mortgage  to  a  con- 
ditional conveyance.  Kunkle  v.  Wolfersberger,  C  Watts,  131.  An  agree- 
ment for  future  reconveyance  at  an  advanced  price,  at  the  election  of  the 
grantor,  is  no  evidence  of  a  mortgage.  Glover  v.  Payn,  19  Wend.  518. 
Where  all  the  clauses  of  an  instrument  are  consistent  with  a  conditional  sale, 
but  some  inconsistent  with  a  mortgage,  it  will  be  construed  as  being  the 
former,  and  not  the  latter.  Thus,  where  the  agreement,  after  stating  the 
receipt  of  a  certain  sum,  used  the  words,  —  "  and  put  a  negro  in  his  hands 
as  security  ; "  and  also  the  following  words,  "  if  the  money  is  not  paid  at  or 
before,  &c.,  the  said,  &c.,  is  to  have  the  said  negro  for  the  said  "  sum ;  it  was 
held  to  be  a  conditional  sale,  because  the  former  words  might  have  full  effect 
by  construing  the  sale  defeasible  till  the  time  named,  while  the  latter  could 
have  no  effect,  unless  after  that  time  the  sale  became  absolute.  Chapman 
V.  Turner,  1  Call,  251.  A  grantor  bound  himself  in  a  large  sum,  as  liqui- 
dated damages,  to  procure  a  release  of  dower,  and  afterwards  wrote  a  letter 
to  his  wife,  requesting  such  release.  Held,  these  facts  did  not  disprove  a 
mortgage.     Russell  v.  Southard,  12  How.  139. 


CII.  v.]  .  CONDITIONAL   SALE.  101 

between  strangers,  and  the  right  of  redemption  restricted  to 
the  time  appointed.^  So,  also,  the  title  passes  to  the  vendee, 
and  he  has  the  intermediate  rents  and  profits.^ 

6.  It  seems  to  be  the  general  rule,  that  equity  will  construe 
a  conveyance  as  a  mortgage  rather  than  a  conditional  sale, 
if  the  language  used  and  the  circumstances  of  the  case  will 
admit  such  construction.^  But,  on  the  other  hand,  the  rea- 
sonable rights  of  the  grantee  will  be  protected.  Thus,  in 
Floyer  v.  Lavington,*  Lord  Chancellor  Cowper  remarked, 
that  this  Court  had  heretofore  gone  too  far  in  permitting  re- 
demptions. In  the  same  case,  he  further  reraarked,^  that 
here  several  circumstances  concurred,  which,  though  each  of 
them  singly  might  not  be  of  force  to  bar  the  redemption,  yet 
all  of  them  joined  together  were  strong  enough  to  prevail 
over  it.  So  Chief  Justice  Marshall  says :  ^  "If  the  vendee 
must  be  restrained  to  his  principal  and  interest,  that  principal 
and  interest  ought  to  be  secure."  "  To  deny  the  power  of 
two  individuals,  capable  of  acting  for  themselves,  to  make  a 
conti-act  for  the  purchase  and  sale  of  lands  defeasible  by  the 
payment  of  money  at  a  future  day,  or,  in  other  words,  to 
make  a  sale  with  a  reservation  to  the  vendor  of  a  riofht  to 
repurchase  the  same  land  at  a  fixed  price  and  at  a  specified 
time,  would  be  to  transfer  to  the  Court  of  Chancery,  in  a  con- 
siderable degree,  the  guardianship  of  adults  as  well  as  of 
infants."  So  it  is  said,  if  parties  intend  an  absolute  sale, 
a  contemporaneous  agreement  for  a  repurchase,  not  acted 
upon,  will  not,  of  itself,  entitle  the  vendor  to  redeem."  And, 
in  another  case,  —  "  As  on  the  one  hand  no  act  of  a  scrivener 
can  turn  that  which  was  intended  as  a  mortgage  into  an  ab- 
solute sale ;  so,  on  the  other,  it  must  not  be  permitted  to  de- 
signing men  to  turn  a  real,  though  defeasible  sale  into  a 

•. 

1  4  Kent,  143,  144 ;  Eaton  v.  Green,  3  gee  4  Kent,  143. 

22  Pick.  529,  530 ;  Turnipseed  v.  Cun-  *  1  P.  Wms.  270. 

ningham,  16  Ala.  601 ;  Scott  v.  Henry,  ^  Ibid.  272. 

8  Eng.  112.     See  Crane  v.  Bonnell,  1  "  Conway  v.  Alexander,  7  Cranch, 

Green,  Ch.  264  ;  Ketclmm  v.  Johnson,  237. 

3,  370;  King  v.  Newman,  2  Munf.  40;  '  Per  Lord  Cottenham,  5  M.  &  C. 

French  v.  Lyon,  2  Root,  69.  306. 

-  Bennet  v.  Holt,  2  Yerg.  6. 
a  * 


102  THE   LAW    OF   MORTGAGES.        ,  [CH.    V. 

mortgage,  without  the  free  consent  of  the  other  contracting 
party."  i  So,  in  the  case  of  McDonald  v.  McLeod,^  Gaston, 
J.,  remarks  :  "  It  is  not  questioned  but  that  a  deed,  abso- 
lute upon  its  face,  may  be  shown  by  extrinsic  facts  to  have 
been  executed  as  a  security  for  the  payment  of  money,  and 
to  have  put  on  the  form  of  an  absolute  deed  by  reason  of  the 
ignorance  of  the  draftsman,  or  from  mistake  of  the  parties,  or 
because  of  undue  advantage  taken  of  the  necessities  of  the 
debtor.  In  examining  transactions  between  borrowers  and 
lenders,  and  between  necessitous  men  and  their  creditors, 
courts  of  equity,  aware  of  the  unequal  relation  of  the  par- 
ties, and  of  the  facility  by  which  the  former  may  be  surprised 
into  improvident  aiTajigements,  and  of  the  moral  coercion 
which  the  latter  can  exercise  over  their  apparent  freedom  of 
action,  are  particularly  attentive  to  any  circumstances  tend- 
ing to  show  an  inconsistency  between  the  form  of  an  act, 
and  the  intent  of  the  parties,  and  will  take  great  pains,  when 
their  suspicion  is  thus  excited,  to  get  at  the  substance  of 
what  was  done  or  intended  to  be  done  by  them.  But,  un- 
questionably, it  is  a  conclusion  of  reason,  and  therefore  must 
be  the  presumption  of  every  Court,  that  solemn  instruments 
between  parties  able  to  contract,  declare  the  truth  in  regard 
to  the  subject-matter  of  their  contract,  until  error,  mistake, 
or  imposition  be  shown."  {m) 

1  Per  Roane,  J.,   Cliapman  v.  Tur-  2  1  irgj.  e^.  226. 

ner,  1  Call,  250. 


(m)  Upon  these  grounds  it  was  lield,  in  the  above  case,  1  Ired.  Eq.  221, 
that  where  the  instrument  was  an  absolute  bill  of  sale,  (of  a  slave,)  and  the 
sum  paid  not  greatly  disproportionate  to  the  value,  and  it  did  not  appear 
that  the  agreemopt,  for  i-estoring  the  slave  to  the  seller  upon  repayment  of 
the  price,  was  made  before  or  at  the  time  of  the  execution  of  the  bill  of  sale, 
and  the  purchjiser  had  refused  to  take  a  mortgage,  and  seven  years  had 
elapsed  without  any  claim  by  the  seller;  the  transaction  should  not  be 
treated  as  a  mortgage,  nor  the  seller  allowed  to  redeem. 

Lands  to  which  A.  had  a  right  of  preemption,  and  of  whi(;h  he  had  pos- 
session, wore  by  his  request  conveyed  by  the  government  to  B.,  who  paid  the 


Cir.  v.]  CONDITIONAL    SALE.  103 

7.  The  doctrine  of  a  conditional  purchase  has  been  par- 
ticularly applied  to  conveyances  by  way  of  renl-ch(vr<^e ;  \\\ 
regard  to  which  it  is  suggested,  that,  unless  it  were  settled 
that  the  estate  of  the  grantee  becomes  absolute  on  breach 
of  condition,  the  property  would  be  very  precarious ;  for 
•  if,  after  the  term  agreed  upon,  the  estate  were  redeemable, 
it  would  be  only  a  personal  estate ;  but  if  considered  as 
absolute,  it  would  be  a  freehold,  and  must  be  conveyed  as 
such,  which  would  create  great  confusion.^  In  this  class  of 
cases,  moreover,  the  absence  of  any  covenant  to  pay  the 
debt  is  relied  upon,  as  a  ground  for  restricting  the  right  of 
redemption  to  the  time  limited  in  the  deed.  In  some  of 
them,  also,  the  lapse  of  time  has  been  an  additional  reason 
for  refusing  relief.  Thus,  in  Floyer  v.  Lavington,^  a  rent- 
charge  was  granted,  upon  condition  that  the  grant  should  be 
void  upon  the  grantor's  making  certain  payments  during  his 
life.  There  was  no  covenant  to  pay ;  the  rent-charge  was 
much  less  than  the  interest  of  the  money,  and  the  grantee 
had  conveyed  the  rent-charge,  after  the  grantor's  death,  given 
a  collateral  security  to  the  purchaser  for  quiet  enjoyment, 
and  the  purchaser  had  afterwards  made  a  marriage  settle- 
ment of  it.  Held,  after  sixty  years  the  right  of  redemption 
was  gone.  So  Thomas  Mellor  mortgaged  to  the  Whiteheads, 
and  the  latter  to  Cartwright  for  .£200,  Thomas  and  his  son 
joining  in  the  latter  mortgage.  To  secure  the  interest.  Cart- 
wright  leased  to  the  son  for  five  thousand  years,  at  the  rent 

1  1  Vow.  130.  2  1  p,  ;vnis_  268. 


price,  and  agreed  with  A.  that  on  payment  of  a  certain  sura  within  a  cex*- 
tain  time  he  would  convey  to  him.  B.  afterwards  wrote  letters  to  A.,  which 
might  be  construed  to  treat  the  transaction  as  a  mortgage,  but  were  not  so 
construed.  A  written  agreement  was  subsequently  made,  reciting  the  title 
of  B.,  and  providing  for  a  sale  by  him,  and  that  he  should  account  for  a  cer- 
tain surplus  of  the  proceeds  with  A.  The  time  having  expired,  B.  sold  to 
C,  with  notice.  Held,  not  a  mortgage,  and  that  A.  had  lost  all  title  to  the 
land.     AVynkoop  v.  Cowing,  21  111.  570. 


104  THE    LAW   OF   MORTGAGES.  [CFI.   V. 

of  <£12  per  annum  for  the  first  three  years,  and  <£10  the  re- 
mainder of  the  term  ;  and  if  the  £200  and  interest  were  not 
paid  in  three  years,  the  land  to  be  reconveyed.  Receipts  were 
given,  sometimes  as  for  interest,  and  sometimes  for  a  rent- 
charge.  The  last  receipt  was  about  forty  years  subsequent 
to  the  lease.  Ten  years  after  this  receipt,  a  bill  to  redeem - 
was  brought  by  the  grandson  of  Thomas,  the  estate  having 
nearly  doubled  in  value  since  the  mortgage.  Held,  it  could 
not  be  sustained.^  So  in  the  case  of  Davis  v.  Thomas,^  the 
plaintiff  mortgaged  certain  property  to  Twyning  for  .£1,200, 
and  afterwards  borrowed  £200  more  on  the  same  security. 
In  the  same  year,  the  plaintiff  executed  a  deed  of  release,  for 
a  valuable  consideration,  of  the  equity  of  redemption,  to  the 
defendant,  the  mortgagee.  Soon  afterwards,  the  defendant 
demised  the  premises  to  the  plaintiff  for  ninety-nine  years,  at 
a  rent  of  a  hundred  guineas  a  year ;  and  upon  the  lease  was 
indorsed  an  agreement  signed  by  the  mortgagee,  that  if  the 
plaintiff  regularly  paid  the  rent  due  at  Lady-day  by  the  4th 
of  June,  and  the  rent  due  at  Michaelmas  by  the  26th  of  Oc- 
tober, he  might  repurchase  the  premises  for  £1,850  at  any 
time  within  five  years  ;  but  if  default  were  made  in  pay- 
ment of  the  rent  within  those  periods,  the  agreement  to  be 
void.  The  plaintiff  failed  in  such  payment,  and  distresses 
were  made  for  the  rent;  but  within  five  years  he  applied  to 
repurchase,  and  tendered  the  arrears  of  rent.  The  defendant 
refused  to  resell ;  and  the  plaintiff  files  a  bill  to  have  the  ben- 
efit of  the  agreement  or  be  let  in  to  redeem.  The  bill  im- 
puted fraud  to  the  defendant,  and  represented  the  estate  as 
having  been  in  1820,  the  date  of  the  release,  worth  about 
£3,000,  but  those  allegations  were  not  proved.  Lord  Chan- 
cellor Brougham  decided,  that  the  instruments  above  refer- 
red to  did  not  all  constitute  one  transaction,  the  party  hav- 
ing first  mortgaged  his  estate,  two  years  afterwards  conveyed 
it,  and  three  months  subsequently,  upon  obtaining  a  lease 
from  the  purchaser,  procured  to  be  indorsed  upon  the  lease, 

1  Mellor  V.  Lees,  2  Atk.  404.  '^  1  Russ.  &  My.  GOG. 


CII.    v.]  CONDITIONAL    SALE,  105 

by  way  of  indulgence,  a  power  to  repurchase  on  certain 
terms  ;  that,  as  the  party  acted  understand! ngly  and  used 
the  most  stringent  words  to  make  time  of  the  essence  of  the 
contract,  he  did  not  come  in  due  time  or  entitle  himself  by 
his  conduct  to  the  benefit  claimed  by  him. 

8.  But  in  Verner  v.  Winstanley,^  one  of  the  plaintifTs, 
having  become  embarrassed,  applied  to  the  defendant  for  a 
loan  of  <£300,  for  which  he  should  take  an  assignment  of  a 
rent-charge  of  X50  per  annum.  The  assignment  was  accord- 
ingly made,  with  a  covenant,  that  the  plaintiff  might  at  any 
time  repurchase  and  reassume  the  rent-charge,  on  giving 
three  months'  notice,  and  paying  c£350  and  all  arrears.  The 
plaintiffs  also  gave  their  joint  and  several  bond  to  the  de- 
fendant in  the  sum  of  .£700,  conditioned  to  pay  <£3o0  in 
about  eight  months,  and  also  for  the  regular  and  punctual 
payment  of  the  rent-charge.  Held,  the  assignment  was  a 
mortgage  ;  partly  upon  the  ground  of  the  clause  for  redemp- 
tion, and  the  additional  sum  of  £50  to  be  paid  by  the  plain- 
tiff; but  chiefly  because  the  defendant  did  not  take  on  him- 
self the  wliole  risk  of  the  annuity,  but  received  the  security 
of  the  bond. 

9.  A  written  agreement  to  reconvey,  upon  repayment  of 
the  consideration  named  in  the  deed,  unsealed,  and  therefore 
insufficient  to  constitute  a  legal  mortgage,  makes  an  equita- 
ble moiigag-e,  and  not  a  sale  with  the  right  to  repurchase.^ 

10.  The  following  distinction  has  been  made  between 
mortgages  and  conditional  sales,  in  reference  to  the  evidence 
by  which  they  may  be  respectively  proved.  "  A  formal  con- 
veyance may  certainly  be  shown  to  be  a  mortgage  by  extrin- 
sic proof,  while  a  formal  mortgage  may  not  be  shown  to  be 
a  conditional  sale  by  the  same  means.  In  the  one  case,  the 
proof  raises  an  equity  consistent  with  the  writing,  and  in  the 
other  would  contradict  it."  ^ 

11.  It  has  been  sometimes  suggested,  that,  even  where  a 
transaction  is  construed  to  be  not  a  mortgage,  but  a  condi- 

1  2  Sch.  &  Lef.  393.  3  pgr    Gibson,   C.   J.  ;    Kunkle    v. 

2  Eaton  V.  Green,  22  Pick.  526.  Wolfersberger,  6  Watts,  130. 


106  THE   LAW    OF   MORTGAGES.  [CH.   V. 

tional  sale,  equity  will  still  afford  relief  against  the  strict  en- 
forcement of  the  contract  between  the  parties.  And  this  prin- 
ciple was  distinctly  laid  down  in  a  late  case  of  a  deed  condi- 
tional for  the  support  of  the  grantee.^  Upon  this  subject,  the 
following  remarks  have  been  made :  "  It  is  contended  for  the 
defendants,  that  even  should  this  be  considered  a  conditional 
sale  and  not  a  mortgage  or  security  for  a  subsisting  debt,  yet 
a  court  of  equity  may  relieve  against  a  forfeiture  for  a  breach 
in  failing  to  repay  the  money  in  time,  because  compensation 
can  be  made,  and  under  the  circumstances  relief  ought  to  be 
granted.  It  is  a  familiar  head  of  equity  jurisdiction  to  re- 
lieve against  a  forfeiture  or  penalty  upon  the  principle  of 
making  compensation.  But  the  present  is  not  a  case  of  for- 
feiture. The  owner  of  the  property  sold  his  estate  ;  and  there 
is  no  proof  of  the  price  having  been  inadequate.  He  made 
it  a  part  of  his  contract —  and  I  must  presume  the  price  was 
fixed  with  reference  to  the  event  —  of  having  the  privilege 
of  redeeming,  or,  which  is  the  same  thing,  repurchasing, 
within  one  year,  by  paying  a  certain  amount  of  money. 
Time  consequently  was  of  the  essence  of  the  contract ;  and 
performance  necessary  to  regain  the  estate  with  which,  by 
his  voluntary  contract,  he  had  parted;  not  that  non-perform- 
ance works  a  forfeiture  and  divests  a  title  and  estate  al- 
ready in  him.  In  such  cases,  equity  does  not  interfere ;  be- 
cause it  would  be  varying  the  express  terms  of  the  contract, 
and  giving  to  the  party  a  benefit  of  extension  in  point  of 
time,  for  which  he  has  not  stipulated.  No  fraud,  accident 
or  mistake  is  charged  as  a  cause  of  his  not  having  availed 
himself  of  the  privilege  within  the  time  appointed."  ^  {n) 

1  Betlilehem  v.  Annis,  40  N.  H.  34.  -  IVr  McCoun,  V.   Clianc,  Robin- 

sou  V.  CioiJsey,  2  Edw.  147. 


(n)  Tlie  following  form  of  decree  was  passed  by  the  Court  in  Pennsyl- 
vania :  "  If  the  said  John  Mortimere  refunds  to  said  Rankin  the  consid- 
eration-money aforesaid,  with  lawful  interest  thereon,  in  one  year  from 
this  date,  then  this  deed  to  be  void  and  of  no  efTect,  and  this  not  to  be  con- 


CII.   v.]  CONDITIONAL   SALE.  107 

sidered  in  the  nature  of  a  niortj.fap;e,  but  an  express  stipulation  to  pay  on 
the  partinilar  day,  and  if"  not  then  paid,  the  estate  and  title  shall  he  absolute, 
without  any  further  deed,  -transfer,  or  proceeding  whatever."  Rankin  v. 
Mortiniere,  7  Watts,  372.  And  the  general  rule  may  be  laid  down,  that 
the  condition  must  be  strictli/  complied  with,  to  entitle  the  grantor  to  a  re- 
conveyance. Hoopes  V.  Bailey,  28  ^liss.  328.  In  a  bill  to  redeem,  where 
the  deed  is  a  conditional  sale,  if  the  bill  allege  that  it  was  given  as  secur- 
ity, it  will  on  demurrer  be  considered  a  mortgage.  Blakemore  v.  Byrn- 
side,  2  Eng,  505. 


108  THE    LAW    OF    MORTGAGES.  [CH.  VI. 


CHAPTER    VI. 

PERSONAL   LIABILITY   OF   THE   MORTGAGOR,   ETC. 

1.  Personal  liability  of  the  mortga-  28.  Coromnt  or  conditinn  for  pay- 
gor  ;  wlietlier  necessary  to  constitute  ment  of  tiie  debt,  how  construeii.  (^ov- 
a  mortjcage  ;  wiiether  tlie  deed  itself  enants  /<«•  title  in  a  niortuaf^e.  Mutual 
creates  such  liability,  &c.  !  relation  and  etllct  of  tlie  covenants  in 

26.  Mortgages  for  support  and  main-  ,  tlie  deeil  and  the  mortgage.  Estoppel, 
tenance,  &c.  \  Rebutter,  &c. 

1.  In  England,  it  would  seem  that  a  mortgage  often,  if 
not  usually,  contains,  in  addition  to  the  ^conditional  clause,  a 
covenant  to  pay  the  sum  \\^hich  the  conveyance  is  designed 
to  secure  to  the  grantee.  In  the  United  States,  such  cove- 
nant is,  for  the  most  part,  omitted  in  the  deed  itself;  but 
the  proviso  of  the  deed  refers  to  a  bond,  note,  or  other  per- 
sonal security,  made  at  the  same  time,  upon  the  payment  of 
which,  both  the  mortgage  and  the  personal  security  are  to 
become  void.  Of  course,  either  a  covenant  in  the  deed,  or  a 
separate  obligation  accompanying  it,  makes  the  mortgagor 
personally  liable  for  the  debt,  at  the  election  of  the  mortga- 
gee; and  it  will  be  seen  hereafter,  that  the  latter  may  pur- 
sue his  remedies  upon  the  personal  security  and  the  mort- 
gage, at  the  same  time,  though  he  can  eventually  have  but 
one  satisfaction  of  his  claim.  In  the  absence  of  any  cove- 
nant in  the  deed,  or  personal  obligation  accompanying  it, 
two  questions  have  been  raised  and  much  discussed;  one 
relating  to  the  nature,  designation,  and  legal  operation  upon 
the  property,  of  the  conveyance  ;  that  is,  whether  it  shall 
constitute  a  ino)ig-ag-e  or  a  conditional  sale  (see  ch.  5) ;  the 
other,  whether  such  a  conveyance  will,  of  itself,  give  to  the 
grantee  a  personal  claim  and  remedy  against  the  grantor,  for 
the  sum  of  money  therein  referred  to.  In  connection  with 
the  same   subject,   has  also,  at  times,  arisen  the  question, 


CII.   VI.]  PERSONAL  LIABILITY,   ETC.  109 

whether,  in  order  to  constitute  a  mortg'ag-e,  strictly  so  called, 
the  condition  must  be  for  the  payment  of  money ;  and,  where 
it  is  for  the  performance  of  other  acts,  in  what  precise  mode 
and  extent  it  is  to  be  enforced  by  legal  proceedings.  From 
the  nature  of  the  case,  these  questions  have  all  necessarily 
been  somewhat  blended  together,  in  the  remarks  of  judges 
and  elementary  writers,  and,  therefore,  do  not  here  require 
separate  consideration. 

2.  Mr.  Coote  remarks,^  that  there  is  the  same  right  of  re- 
demption, whether  there  be  a  covenant  or  not.  Every  loan 
implies  a  debt;  though  the  covenant  may  serve  to  explain 
the  transaction  in  a  doubtful  case,  and  prove  it  to  be  a 
mortgage.  And  the  same  author  elsewhere  remarks:'^  —  "A 
mortgage  cannot  be  a  mortgage  on  one  side  only ;  it  must 
be  mutual ;  that  is,  if  it  be  a  mortgage  with  one  party,  it 
must  be  a  mortgage  with  both.  The  reverse  of  this  was  for- 
merly attempted  to  be  established  ;  namely,  that  it  must  be 
a  mortgage  with  both  or  with  neither ;  so  that  it  was  argued 
none  could  come  to  redeem,  if  the  mortgagee  could  not  com- 
pel the  payment  of  the  mortgage-money  ;  but  the  former  is 
the  true  principle.  The  mutuality,  however,  need  not  run 
quatuor  pedibus ;  the  rule  only  requires  that  it  shall  not  be 
competent  to  one  party  alone  to  consider  it  a  mortgage.  In 
other  respects  the  rights  of  the  parties  may  be  different,  for 
it  is  every  day's  practice,  that  one  party  may  not  be  able  to 
foreclose  at  a  time  when  the  other  may  redeem." 

3.  In  Ancaster  v.  Mayer,^  Lord  Chancellor  Thurlow  says  : 
—  "A  man  mortgages  his  estate  without  covenant,  yet,  be- 
cause the  money  was  borrowed,  the  mortgagee  becomes  a 
simple  contract  creditor,  and,  in  that  case,  the  mortgage  is  a 
collateral  security."  The  same  doctrine  is  laid  down  by  him 
in  the  case  of  Floyer  v.  Lavington.^     In  Kmg  v.  King,^  Lord 

1  Coote,  50.  Enj;.  Law  &  Eq.  494  ;  Ransone  v.  Fray- 

2  Ibid.  61 ;  acc.  Com.  Dig.  Cliance-     ser  10  Leigh,  592. 

ry,  4  A  3.  *  1  P.  Wnis.  268 ;  acc.  Yates  v.  Ash- 

^  1  Bro.  464.  See  Bacon  v.  Brown,  ton,  4  Qu.  B.  182;  AUenby  v.  Dalton, 
19  Conn.  29;  Lawrance  v.  Boston,  8    5  L.  J.  K.  B.  312,  (0.  S.) 

6  3  p.  Wuis.  358. 

VOL.  I.  10 


110  THE   LAW   OF   MORTGAGES.  [CH.  VI. 

Talbot  said,  the  absence  of  a  covenant  or  bond  did  not  vary 
the  transaction  ;  for  that  every  mortgage  implied  a  loan,  and 
every  loan  implied  a  debt,  for  which  the  mortgagor's  personal 
estate  was  liable  ;  and  although  an  action  of  covenant  would 
not  lie,  still,  it  might  be  a  mortgage.  In  INIellor  v.  Lees,^ 
Lord  Hardwicke  says,  the  absence  of  a  covenant  is  a  strong 
circumstance  to  indicate  the  intention  of  the  parties  ;  but  if 
that  were  the  only  circumstance,  I  should  not  rely  upon  it 
to  defeat  the  plaintiff's  right  to  redeem. 

4.  It  has  been  held,  that  an  acknowledgment  by  the  mort- 
gagor, in  a  separate  deed,  that  the  debt  is  due,  if  made  solely 
for  a  collateral  purpose,  will  not  raise  an  implied  covenant  to 
pay ;  though,  in  general,  this  is  the  effect  of  an  unequivocal 
acknowledgment.^ 

5.  In  Exton  v.  Greaves,^  certain  mortgaged  premises,  or  the 
equity  of  redemption  thereof,  being  subjected  to  the  payment 
of  divers  debts,  the  mortgagee  brings  a  bill  for  foreclosure 
against  the  mortgagor  and  all  the  creditors.  At  the  time 
fixed  for  foreclosure,  the  defendant,  a  creditor,  by  consent  of 
the  creditors,  paid  the  money,  and  agreed  with  the  creditors, 
that  if  they  would  pay  his  money  at  a  further  day,  they 
should  redeem ;  otherwise,  he  should  have  the  lands  abso- 
lutely. They  failed  to  do  so,  the  defendant  enjoyed  the  lands 
for  twenty  years,  and  laid  out  £800  in  building;  and  now 
the  creditors  exhibit  their  bill  to  redeem  him.  It  was  con- 
tended for  the  defendant,  that  the  case  was  not  like  a  mort- 
gage, for  a  mortgagee  has  a  covenant  for  payment  of  his 
money,  and  most  commonly,  a  bond ;  but  here,  the  defend- 
ant had  no  way  to  compel  the  creditors  to  pay  him  his  money ; 
that  a  mortgage  ought  to  be  mutual ;  as  one  may  compel  to 
receive,  so  the  other  may  compel  to  pay  ;  and  it  would  have 
been  looked  on  as  superfluous  and  fantastical  for  the  defend- 
ant to  have  exhibited  a  bill  to  have  foreclosed  these  creditors. 
But  the  Lord  Keeper  decreed  a  redemption,  and  directed  an 


1  2  Atk.  494.  «  1  Vern.  138. 

-  Courtney  v.  Taylor,  6  M.  &  G.  851. 


CH.  VI.]  PERSONAL   LIABILITY,   ETC.  Ill 

accoiint  to  be  taken,  and  the  defendant  to  be  allowed  only 
necessary  repairs  and  lasting  improvements. 

6.  In  Goodman  v.  Grierson,^  the  father  of  the  plaintiff, 
owning  lands  subject  to  a  charge  of  £1,000  to  his  sister,  the 
wife  of  Higgins,  in  1788  conveyed  to  trustees  for  Higgins 
and  wife,  in  lieu  and  satisfaction  of  the  sum  of  X  1,000 ;  with 
a  covenant  for  reconveyance,  if  the  grantor,  his  heirs,  &c., 
should,  within  ten  years,  pay  the  £1,000.  Higgins  entered. 
In  1797,  the  father  of  the  plaintiff  died,  leaving  the  plaintiff 
his  heir.  Soon  after,  Higgins  and  wife  died,  and  the  de- 
fendant became  entitled  to  the  lands  under  the  will  of  Hig- 
gins. In  1803,  a  tender  was  made  to  him  of  X  1,000  on 
behalf  of  the  plaintiff,  which  he  refused  ;  and  in  April,  1811, 
the  bill  was  filed  on  behalf  of  the  plaintiff,  a  minor,  for  redemp- 
tion. It  was  held  that  the  bill  should  be  dismissed.  Lord 
Chancellor  Manners  remarked  :  ^  —  "If  the  intention  were 
that  it  should  be  a  mortgage,  the  absence  of  a  covenant  and 
collateral  bond  would  not  make  it  the  less  so.  The  fair  cri- 
terion by  which  the  Court  is  to  decide  whether  this  deed  be 
a  mortgage  or  not,  I  apprehend  to  be  this,  —  are  the  reme- 
dies mutual  and  reciprocal  ?  Has  the  defendant  all  the  rem- 
edies a  mortgagee  is  entitled  to  ?  I  conceive  he  has  not. 
Suppose,  for  instance,  the  defendants  to  file  a  bill  of  fore- 
closure ;  by  the  practice  of  this  Court,  the  decree  is  for  a  sale 
of  the  mortgaged  premises,  if  they  be  not  redeemed  within 
the  time  limited  by  the  course  of  the  Court.  Suppose  the 
sale  to  take  place,  and  the  produce  to  be  insufficient  to  dis- 
charge the  £1,000  and  costs,  how  is  the  deficiency  to  be 
raised  ?  .What  remedy  could  the  defendant  then  have  ?  If 
it  were  a  mortgage,  he,  in  that  case,  might  proceed  on  his 
covenant  or  bond,  or,  if  no  covenant  or  bond,  upon  the  im- 
plied assumpsit ;  but  how  could  any  action  be  maintained  in 
this  case,  where  the  defendants  have  taken  the  conveyance, 
not  as  security,  but  expressly  in  lieu  and  satisfaction  of  the 
portion  of  £1,000.    This  appears  to  me  decisive  to  show,  that 

1  2  Ball  &  B.  274.  '^  Ibid.  278. 


112  THE   LAW    OF   MORTGAGES.  [CH.  VI. 

the  transaction  between  these  parties  was  not  that  of  a  mort- 
gage, but  a  conditional  sale  ;  for  if  the  defendants  have  not 
all  the  remedies  of  a  mortgagee,  why  am  I,  contrary  to  the 
express  provisions  of  this  deed,  to  hold  it  to  be  a  mortgage, 
and  to  extend  the  condition  beyond  the  limit  agreed  upon 
by  the  parties  to  this  deed  ?  There  would  be  much  hard- 
ship and  inconvenience  to  the  one  party,  and  there  appears 
to  me  to  be  no  substantial  ground  to  entitle  the  other  to  re- 
lief." 

7.  The  doctrine   upon  this  subject,  in  this  country,  has 
been  somewhat  various  and  conflicting. 

8.  Several    cases    have    occun-ed    in    the    United    States 
Courts. 

9.  In  Conway  v.  Alexander,^  the  absence  of  a  covenant 
was  held  to  be  strong,  but  not  conclusive  evidence  of  a  con- 
ditional sale.  In  Morris  v.  Nixon,^  it  was  held,  that,  where 
there  was  a  previous  conversation  between  the  parties  about 
borrowing  and  lending,  an  offer  to  secure  by  mortgage,  and 
a  bond  given  to  the  grantee ;  these  circumstances  were  suffi- 
cient to  make  the  deed  a  mortgage,  though  in  form  abso- 
lute, unless  a  subsequent  bargain  were  proved.  In  Flagg  v.  • 
Mann,"  Judge  Story  remarked  as  follows  :  —  "It  is  said,  that 
there  is  no  covenant  on  the  part  of  Richardson  to  repay  the 
money  paid,  which  should  be  paid  by  Walker  and  Fisher, 
to  discharge  the  incumbrances  on  the  premises.  But  that  is 
by  no  means  necessary  in  order  to  constitute  a  mortgage,  or 
to  make  the  grantor  liable  for  the  money.  The  absence  of 
such  a  covenant  may,  in  some  cases,  where  the  transaction 
assumes  the  form  of  a  conditional  sale,  be  important,  to  as- 
certain whether  the  transaction  be  a  mortgage  or  not ;  but, 
of  itself,  it  is  not  decisive.  The  true  question  is,  whether 
there  is  still  a  debt  subsisting  between  the  parties,  capable 
of  being  enforced  in  any  way,  in  rem  or  in  persona?)!.  Now, 
it  seems  to  me  clear,  upon  admitted  principles  of  law,  that, 
upon  the  payment  of  the  money  due  to  Bennett  by  Walker 

1  7    Crancli,   237.      See   Hickox   v.  ^  1  How.  119." 

Lowe,  10  Cal.  1'j7.  »  2  Sumn.  534. 


fir\ 


ClI.   VI.]  PERSONAL   LIABILITY,   ETC.  .  113 

and  Fisher,  Richardson  became  their  debtor  for  that  amount, 
as  it  was  paid  at  his  request,  and  for  liis  benefit.  It  is  a 
common  principle,  that  if  A.,  at  the  request  of  B.,  pays  a 
debt  due  by  him  to  C,  A.  may  recover  the  amount  in  as- 
sumpsit for  money  paid  to  his  use,  or  for  money  lent  and 
accommodated.  In  my  judgment,  that  is  the  very  case  at 
bar."  "  It  is  said,  that  here  there  was  no  loan  made  or  in- 
tended to  be  made,  by  Walker  and  Fisher  to  Richardson ; 
and  that  they  refused  to  make  any  loan.  There  is  no  magic 
in  words.  It  is  true,  that  they  refused  to  make  a  loan  to 
him  in  money.  But  they  did  not  refuse  to  pay  for  him  the 
amount  due  to  Bennett,  and  to  take  the  premises  as  their 
security  for  reimbursement  within  five  years." 

10.  It  has  been  held  in  Pennsylvania,  that  a  conditional 
conveyance,  without  any  covenant,  may  constitute  a  mort- 
gage, upon  which  the  sum  due  may  be  recovered  by  scire 
facias,  or  the  premises  by  ejectment.^  But  in  Scott  v. 
Fields,^  where  the  plaintiff'  brought  an  action  of  debt  upon 
a  mortgage  in  common  form,  and  was  allowed  to  prove  by 
parol  evidence,  that  no  such  bond  was  actually  given  as  the 
mortgage  recited ;  it  was  held,  that  the  action  could  not  be 
maintained.  In  giving  the  opinion  of  the  Court,  reversing 
the  judgment  of  the  Court  below.  Sergeant,  J.,  remarks:  — 
"A  mortgage,  in  its  origin,  was  a  conveyance  of  land,  with 
a  condition  annexed,  that,  on  payment  of  a  sum  of  money 
by  the  grantor  to  the  grantee,  at  a  certain  day,  the  convey- 
ance should  be  void.  In  case  of  the  non-payment,  the  rem- 
edy of  the  grantor  (grantee)  was  by  a  proceeding  in  rem.  It 
was  never  considered  as  binding  on  the  mortgagor  person- 
ally for  the  payment  of  the  money.  The  authorities  and  the 
reason  of  the  thing  seem  to  show,  that  a  mortgage  is  not, 
of  itself,  an  instrument  by  which  a  personal  liability  for  the 
money  is  raised,  and  on  which  an  action  of  debt  or  covenant 
can  be  maintained  ;  —  yet,  that  if  there  be  any  prior  or  ac- 

1  Wharf   V.    Howell,   5  Binn.   499.  2  7  Watts,  360. 

See   Stoever  v.    Stoever,  9   S.   &  R. 
448 ;  Hicks  v.  Hicks,  5  Gill  &  J.  85. 

10* 


114  THE   LAW   OF  MORTGAGES.  [CH.   VI. 

companying  cause  of  action  which,  of  itself,  creates  a  per- 
sonal liability  distinct  from  the  mortgage,  such  as  a  loan,  a  • 
bond,  a  note,  or  other  claim,  the  mortgage  is  not  to  be  con- 
sidered as  merging  such  claim  or  demand,  but  is  merely  a 
collateral  security.  It  is  contended  in  the  present  case,  that 
there  is,  in  this  mortgage,  an  acknowledgment  of  a  debt, 
which  is  a  sufficient  ground  to  maintain  the  action.  If  there 
were  such  an  acknowledgment  of  a  prior  debt  and  no  more, 
as,  for  instance,  if  it  recited  money  borrowed,  it  would  rather 
seem,  from  the  authorities,  that  the  action  in  personam  should 
be  on  the  contract  by  which  the  debt  arose,  and  that  no  im- 
plied contract  inferred  from  the  mortgage  will  be  sufficient. 
But  here  the  acknowledgment  is  of  a  bond, —  and  the  mort- 
gage is  declared  to  be  given  to  secure  the  payment  of  the 
bond.  No  contract  can  be  implied  from  the  mortgage,  when 
the  contract  is  express  and  formal.  ^ Expressnm  facit  cessare 
taciturn.^ "  It  was  further  remarked,  that  even  if  the  evidence 
showed  that  no  bond  was  actually  given,  but  the  parties 
waived  it ;  this  action  could  be  sustained  only  on  the  lan- 
guage of  the  mortgage. 

11.  In  New  York  it  has  been  held,  that  the  mortgagee 
may  maintain  a  personal  action  for  the  debt,  upon  the  ac- 
knowledgment, in  the  deed,  of  indebtedness,  and  that  the 
conveyance  is  made  for  security.^  But  not  unless  there  is 
such  an  acknowledgment,  or  an  agreement  to  pay.^  Under' 
the  Revised  Statutes  of  New  York,  no  covenant  to  pay  the 
sum  secured  by  a  mortgage  can  be  implied  from  the  mort- 
gage itself ;  and  where  a  debt  is  discharged  by  a  mortgage 
or  an  absolute  deed,  as  security  for  repayment  of  the  consid- 
eration, the  only  remedy  for  payment  is  upon  the  premises 
conveyed.^ 

12.  In  New  Hampshire,  upon  a  construction  of  the  statute 
relating  to  mortgages,  it  was  held,  that,  to  constitute  a  mort- 
gage, the  land  must  be  put  in  pledge,  on  condition,  for  the 
payment  of  money  or  some  otlier  act.  Otherwise,  the  con- 
veyance will  be  construed  as  a  conditional  sale.* 

1  Elder  V.  Rouse,  15  Wend.  218.  »  Hone  v.  Fisher,  2  Barb.  Ch.  559. 

2  Weed  V.  CoviU,  14  Barb.  242.  *  Porter  v.  Nelson,  4  N.  H.  130. 


! 


CH.  VI.]  PERSONAL   LIABILITY,   ETC.  115 

13.  In  Maine,  personal  security  is  not  necessary  to  consti- 
tute a  mortgage.^ 

14.  In  Massachusetts,  the  rule  has  been  thus  stated  :  — 
"  Where  there  is  a  bond  or  covenant  in  the  deed  to  repay 
the  money  lent,  it  is,  at  law,  a  debt;  and  the  Court  of  Chan- 
cery considers  it  in  good  conscience  due,  although  there  is 
neither  bond  or  covenant  to  enforce  the  repayment."  ^  And, 
in  another  case,  "  the  deed  of  mortgage  creates  a  contract 
respecting  a  debt,  as  well  as  a  conveyance  of  the  estate."  ^ 
So,  a  deed  of  land,  and  a  bond  made  at  the  same  time  to 
reconvey,  on  payment  of  a  sum  of  money,  without  any  per-r 
sonal  security  therefor,  constitute  a  mortgage  ;  and  the  mort- 
gagee's right  under  the  same  will  pass  by  a  devise  of  "all 
the  obligations  for  money  due  to  him."  Parker,  C.  J.,  says  : 
— "  The  grantee  could  no  otherwise  have  acquired  an  inde- 
feasible estate,  than  by  entry  to  foreclose,  or  judgment  as  in 
cases  of  mortgage ;  and  his  estate  was  liable  to  be  defeated 
at  any  time,  by  the  payment  of  the  debt  and  interest,  after 
entry  for  condition  broken,"  &c.  *  In  Bodwell  v.  Webster,^ 
Putnam,  J.,  refers  to  the  above  decision,  and  suggests,  as  his 
own  opinion,  that  the  want  of  mutuality,  in  regard  to  the  re- 
covery of  the  debt,  enters  much  into  the  equity  of  the  case ; 
upon  the  ground  that,  in  case  of  depreciation  of  the  prop- 
erty, the  grantee  must  bear  the  loss,  and  therefore  should 
have  all  the  advantage  of  a  failure  to  perform  the  condition.^ 
And  in  a  very  late  case  it  is  said,  the  absence  of  a  personal 
obligation  accompanying  the  conveyance  "  is  only  one  cir- 
cumstance, to  be  regarded  in  ascertaining  whether  it  is  to  be 
treated  as  a  mortgage  or  a  sale  with  a  contract  for  repur- 
chase." 7  (a) 

1  Smith  V.  People's,  &c.  11  Shepl.  *  Rice  v.   Rice,  4   Pick.   349,   352. 

185;  Mitchell  v.  Burnham,  44  Maine,  See  Rice  v.  Bird,  22  lb.  350. 

299.  6  13  Pick.  415. 

^  Reading  of  Judge  Trowbridge,  8  ^  See  also  Flint  v.  Sheldon,  13  Mass. 

Mass.  564.  448. 

8  Peuniman  v.  Hollis,  13  Mass.  430.  "  Per  Bigelow,  C.  J.,   IMurphy  v. 

Galley,  1  Allen,  109. 

(a)  A  mortgagee  assigned  her  interest  in  the  mortgaged  premises,  in  con- 
sideration of  a  sum  loaned  to  her,  and  promised,  orally,  to  repay  such  sum 


IIG  THE   LAW   OF  MORTGAGES.  [cH.   VI. 

15.  In  Vermont,  a  quitclaim  deed,  with  a  consideration  in 
money  named,  and  a  condition  that  the  grantor  may  redeem  • 
on  paying  back  such  consideration,  with  interest,  is  not  evi- 
dence of  a  debt,  like  a  note  and  mortgage,  but  more  in  the 
nature  of  a  right  to  repurchase.^ 

16.  It  lias  been  held  in  North  Carolina,  that  the  mortgagor 
has  a  right  to  redeem,  though  the  mortgage  contains  no  cov- 
enant.- 

17.  It  has  been  held  in  Texas,  that  if  a  conveyance,  in 
whatever  form,  is  alleged  and  proved  to  be  a  mortgage  to 
secure  a  loan  of  money,  and  the  property  is  lost  without  the 
mortgagee's  fault ;  he  may  recover  the  money,  though  there 
be  no  express  promise  to  repay  it.^ 

18.  In  Alabama,  where  the  maker  of  several  notes,  pay- 
able to  his  own  order,  makes  a  mortgage  to  a  third  person, 
to  secure  their  payment,  he  thereby  admits  that  they  are 
valid  securities  for  the  payment  of  money  in  the  hands  of 
the  mortgagee,  although  not  regularly  indorsed.* 

19.  In  South  Carolina,  a  recital,  in  a  mortgage,  of  the 
bond  secured  by  it,  is  not  sufficient  evidence  of  the  debt, 
unless  the  loss  or  destruction  of  the  bond  is  shown  ;  espe- 
cially where,  as  in  South  Carolina,  the  bond  is  negotiable.^ 

20.  In  Missouri,  one  owing  a  note  for  $300  conveyed  land 
to  the  holder,  at  the  price  of  $1,000.  The  note  not  being  at 
hand  at  the  time,  he  gave  another  note  for  $260,  for  money 
advanced,  and  the  creditor  gave,  at  the  same  time,  a  note  for 
§440.  Held,  this  was  not  sufficient  to  show  that  the  deed 
was  a  mortgage.'' 

21.  A  mortgage  is  not  a  note,  bond,  bill,  or  other  instru- 
ment in  writing,  within  the  act  of  Illinois,  concerning  prom- 

1  Henrj'  r.  Bell,  5  Verm.  393.  ^  Chewning  v.  Proctor,  2  .McC.  Cli. 

2  Wilcox  V.  Morris,  1  Mur.  117.  11. 

^  Steiiliens  v.  Slierrod,  G  Tex.  294.  ^  Edwards  v.  Ferguson,  14  Mis.  469. 

*  Hartwell  v.  Blocker,  0  Ala.  5bl. 

with  interest,  unless  the  assignee  should  receive  it  from  the  estate.  Held, 
the  mortgagee  was  liable,  as  trustee  of  the  assignee,  to  this  amount.  Hills 
V.  Elliot,  12  Mass.  26. 


CH.   VI.]  PERSONAL   LIABILITY,    ETC.  117 

issory  notes,  and  want  or  faihire  of  consideration  is  no  plea 
to  a  scire  facias  for  foreclosure.^ 

22.  Ill  Tennessee,  a  mortgage  recited  that  the  defendant 
was  "indebted  to  the  plaintiff  in  the  sum  of  eighty-nine  dol- 
lars and  ninety -two  cents,  which  should  have  been  paid  on 
the  1st  of  January,  theretofore."  Held,  a  covenant  to  pay 
money,  upon  which  an  action  of  debt  would  lie.^  (b) 

23.  Prof.  Greenleaf  comes  to  the  conclusion,  that  a  deed, 
merely  containing  the  proviso,  that,  if  a  certain  sum  be  paid 
at  a  certain  time,  the  deed  shall  be  void,  without  any  accom- 
panying bond,  note,  or  other  personal  security,  is  merely  evi- 

1  Hall  i".  Byrne,  1  Scam.  140.  ^  Couger  v.  Lancaster,  6  Yerg.  477. 


(ii)  In  this  connection,  may  be  stated  the  rule  as  to  the  personal  liability 
of  the  respective  parties,  in  case  of  a  conveyance  of  land  mortgaged. 

In  New  York,  it  is  held,  that  the  purchaser  of  land,  subject  to  mortgage, 
the  mortgage  debt  forming  part  of  tlie  consideration,  is  bound  to  indemnify 
the  grantor,  though  he  enter  into  no  bond  or  covenant  to  do  so.  Dorr  v. 
Peters,  3  Edw.  Ch.  132. 

But  also,  that,  where  land  is  conveyed  expressly  subject  to  a  mortgage 
thereon,  and  it  is  apparent  that  the  consideration  expressed  in  the  deed 
was  the  estimated  value  of  the  premises  over  and  above  the  incumbrances; 
those  circumstances  furnish  no  evidence  of  an  agreement  by  the  purchaser 
to  become  personally  bound  for  the  payment  of  the  mortgage.  Tillotson 
V.  Boyd,  4  Sandf.  516.  And  the  omission  to  insert  in  a  deed  a  covenant,  that 
the  grantee  will  assume  or  pay  a  mortgage,  is  strong  evidence  that  the  par- 
ties did  not  intend  he  should  be  liable.     Ibid. 

A  mortgagor  conveys  to  A.,  who  conveys  to  B.,  and  B.  to  the  defendants. 
There  was  no  agreement  that  B.  should  be  liable  for  the  debt ;  but  the  deed 
to  the  defendants  described  the  land,  as  "  subject  to  the  mortgage,  which  is 
taken  as  part  of  the  consideration-money,  and  which  the  purchaser  agrees  to 
pay  and  discharge."  The  mortgagee  brings  a  bill  to  foreclose,  and  seeks  to 
hold  the  defendants  liable  for  the  deficiency.  Held,  they  were  not  liable. 
King  V.  Whitely,  1  Hoffm.  Ch.  477. 

In  Virginia,  where  a  purchaser  gives  a  mortgage  for  the  purchase-money, 
and  conveys  tlic  land,  the  land  will  still  be  liable  for  the  amount  of  the  mort- 
gage :  and,  if  insufficient,  the  mortgagor  will  be  personally  liable ;  but  his 
vendee  will  not  be  personally  liable  therefor,  without  a  special  agreement  to 
that  effect.     Bumgardner  v.  Allen,  6  Munf.  439. 


lis  THE   LAW   OF   MORTGAGES.  [CH.  VI. 

dence  of  a  lien  on  the  hnul,  or  of  a  conditional  sale,  unless 
it  contains  an  admission  of  a  debt  due,  either  direct  or  indi- 
rect ;  and  if  the  debt  is  either  thus  admitted  or  can  be  proved 
aliunde,  it  is  recoverable,  as  if  there  were  no  mortgage ;  un- 
less the  evidence  shows  an  agreement  to  rely  solely  upon  the 
property.  And  tiiis  agreement  would  reasonably  be  inferred 
from  the  absence  of  a  personal  obligation,  contrary  to  general 
usage.^  (f) 

2-1.  Whether  a  mortgage  to  secure  the  obligation  of  a  third 
person  binds  the  mortgagor  personally,  is  a  question  of  in- 
tcution,  depending  on  a  just  and  reasonable  construction  of 
the  whole  instrument.  Such  intention  is  not  proved  by  a 
clause,  in  which  the  mortgagor  "  confesses  judgment  for  the 
amount  of  the  debt,  and  agrees,  in  case  of  its  non-payment, 
as  provided  by  the  act,  that  the  law  in  such  cases  made  and 
provided  may  be  strictly  enforced  and  summarily  put  in  ex- 
ecution." This  clause  merely  gives  a  remedy  by  executory 
process  against  the  property ;  but  does  not  authorize  a  Ji.  fa. 
against  other  property,  nor  the  registry  of  the  act,  so  as  to 
operate  as  a  judicial  mortgage.^ 

26.  In  this  connection  may  be  considered  a  certain  class 
of  mortgages,  of  not  unfrequent  occurrence,  the  condition 
of  which  is  not  for  the  payment  of  money,  but  the  perform- 
ance of  some  collateral  act.  The  most  common  conveyances 
of  this  description,  are  mortgages  made  to  secure  future  sup- 
port  and  maintenance  to  the  mortgagees  or  other  parties  ;  and 
various  qiiestions  have  been  raised,  as  to  the  validity,  con- 
struction, and  method  of  enforcement  of  such  mortgages.^ 

27.  Prof.  Greenleaf  remarks,  that  in  those  States,  where 


'  2  Grt'cnl.  Cruise,  83  n.  8  g^e  ch.  8,  §  40  et  seq. 

■'  New  Ori'/ans,  &.c.  i'.  llogan,  1  La. 
Ann.  I{.  02. 


(c)  This  is  expressly  provided  bv  statute  in  New  York,  'Wisconsin,  and 
Indiana.  2  N.  Y.  Rev.  Sts.  22  ;  Wis.  lb.  ch.  59,  §  6  ;  Ind.  Rev.  Sts.  cb.  29, 
i  31. 


CH  VI.]  PERSONAL   LIABILITY,   ETC.  119 

the  Courts  have  not  full  equity  jurisdiction,  it  has  been  ques- 
tioned whether  any  deed  can  be  regarded  strictly  as  a  mort- 
gage, unless  the  condition  is  for  the  payment  of  money,  or 
the  performance  of  a  contract  where  the  damages  are  capa- 
ble of  computation  by  the  Court ;  and  whether,  therefore, 
conditions  for  general  support,  comfort,  and  maintenance, 
good  behavior,  &c.,  are  susceptible  of  relief,  unless  under  a 
general  equitable  jurisdiction.  He  adds,  however,  that  in 
the  case  of  maintenance,  the  damage,  of  course,  may  be  com- 
puted by  the  value  of  board  per  week  ;  ^  and  the  weight  of 
authority  is  clearly  in  favor  of  the  validity  of  this  class  of 
mortgages,  [d) 

1  2  Greeiil.  Cruise,  80  n.     See  Noyes  i'.  Sturdivant,  6  Shepl.  104  ;  Page  v. 
Green,  6  Conn.  338. 


((/)  In  a  suit  in  equity  to  foreclose  a  mortgage,  where  the  obligation,  to 
secure  which  the  mortgage  was  given,  is  unliquidated,  and  there  is  nothing 
before  the  Court  to  show  that  the  amount  due  is  less  than  the  amount  neces- 
sary to  give  the  Court  jurisdiction,  the  Court  is  not  divested  of  Its  jurisdic- 
tion, although  the  master  should  report  a  less  sum  to  be  due.  Ferguson  v. 
Kimball,  3  Barb.  Ch,  616.  In  Louisiana,  the  exact  sum  must  be  expressed 
in  the  act  of  mortgage.  La.  Civ.  Code,  art.  3277.  In  Massachusetts,  Maine, 
and  New  Hampshire,  the  statute  law  would  seem  to  have  settled  that  condi- 
tions for  support,  &c.,  are  sufficient  to  constitute  a  mortgage.  Mass.  Rev. 
Sts.  ch.  107,  §§  6,  23;  Me.  Rev.  Sts.  1840,  ch.  125,  §15;  N.  H.  Rev.  Sts. 
ch.  131,  §  1.  But  a  very  late  case  in  New  Hampshire  decides  otherwise. 
Bethlehem  v.  Annis,  40  N.  H.  34.  See  ch.  5,  s.  1,  n.  Where  the  condition 
of  a  mortgage  is  to  perform  personal  services,  and  there  is  a  breach,  it  seems, 
a  conditional  judgment  may  be  rendered  for  the  damages.  Hoyt  v.  Brad- 
ley, 27  Me.  242.  The  following  are  some  of  the  leading  cases  of  mortgages 
for  support.  In  a  suit  for  foreclosure  of  a  mortgage,  conditioned  for  the 
support  'of  the  mortgagee's  widow,  who  has  deceased  ;  the  question  is  not 
how  much  she  received,  but  how  much  she  was  entitled  to  receive  ;  and  the 
mortgagor  cannot  exempt  himself  from  liability  by  proof  that  she  received 
but  a  partial  support  from  any  person.  Ferguson  v.  Kimball,  3  Barb.  Ch. 
616.  Mortgage  from  a  son  to  his  mother,  who  had  the  privilege  of  residing 
in  his  house  under  the  will  of  her  husband,  conditioned  to  "  find  her  firewood 
for  one  fire,  to  be  drawn  and  cut  at  the  door,  fit  for  use."  The  house  being 
burnt,  the  mother  took  up  her  abode  with  another  son,  and  demanded  fire- 


120 


THE   LAW    OF   MORTGAGES.  [CH.  VI. 


28.  The  question  has  been  raised,  whether  the  provision 
in  the  mortgage,  relating  to  payment  of  a  debt,  even  though 


wood  of  the  mortgagor,  to  which  he  replied  that  he  was  not  bound  to  furnish 
it  off  the  farm.  She  then  demanded  that  he  should  furnish  It  at  the  old 
place,  to  which  he  replied  that  he  would  see  about  it,  but  no  wood  was  fur- 
nished by  him.  Held,  a  sufficient  demand  and  refusal  to  sustain  an  action 
on  the  mortgage.  Fiske  v.  Fiske,  20  Pick.  499.  So  although  she  was  at 
times  living  at  some  distance,  she  having  pointed  out  a  place  of  delivery 
within  a  reasonable  and  convenient  distance.  Ibid.  A  mortgage  was  con- 
ditioned, that  the  mortgagor  should  keep  a  cow  for  the  mortgagee.  In  con- 
sequence of  improper  keeping  the  latter  was  obliged  to  sell  the  cow  at  a  low 
price.  In  a  suit  upon  the  mortgage,  held,  the  plaintiff  was  entitled  to  judg- 
ment for  the  cost  of  keeping  a  cow  after  the  sale,  without  having  purchased 
one  and  tendered  it  to  the  mortgagor  to  be  kept ;  the  latter  never  having 
offered  to  keep  another  cow,  nor  given  any  assurance  that  one  should  be  better 
kept.  Ibid.  A  mortgage  was  given,  conditioned  to  support  the  mortgagee, 
his  wife,  and  a  non  compos  daughter,  during  their  lives  and  the  life  of  the 
survivor.  The  father  and  mother  having  died,  the  daughter  left  the  place 
where  support  had  been  furnished,  and  went  to  a  distant  town,  where  she 
became  chargeable  as  a  pauper.  The  selectmen  notified  those  of  the  town 
which  she  left,  and  where  she  had  her  settlement,  who  brought  her  back, 
and  requested  the  mortgagor  to  support  her  and  pay  the  expenses  incurred, 
but  he  refused.  Held,  no  breach  of  condition,  there  being  no  evidence  that 
he  was  in  fault,  and  the  town  being  strangers  to  the  contract  for  support. 
Khoadcs  r.  Parker,  10  N.  H.  83.  But  the  selectmen  having  obtained  the 
authority  of  her  guardian  for  that  purpose,  and  then  applied  to  the  mort- 
Ta^or  to  support  her,  to  which  he  replied  that  he  thought  it  best  to  have  a 
trial  about  it ;  that  his  counsel  had  told  him,  he  had  better  let  the  town  sup- 
port her,  and  bring  an  action  against  him,  and  he  would  then  have  a  better 
chance  in  a  controversy  with  those  wiih  whom  he  had  contracted  for  her  sup- 
port :  held,  this  was  evidence  of  a  refusal  to  support,  and  a  breach  of  the  con- 
dition ;  and  that  it  was  not  necessary,  after  a  refusal,  to  carry  her  to  his  house, 
or  to  the  place  provided  by  him,  and  make  a  demand  of  the  support  there. 
Ibid.  ^lortgage  hy  a  son  to  his  father,  with  condition  to  "  provide  a  com- 
fortable room  or  apartment  for  his  father  and  mother,  together  with  suitable 
meat,  drink,  lodging,  and  apparel,  with  all  things  necessary  for  their  support 
and  comfort,  both  in  sickness  and  in  health,  suited  to  their  age  and  condi- 
tion, ami  with  a  good  horse  and  what  shall  be  necessary  for  their  comfort 
and  convenience,  both  to  meeting  and  to  visiting  their  friends,  during  their 
natural  livi-s."  At  the  time  the  mortgage  was  made,  the  father  and  mother, 
with  all  their  children,  lived  on  the  farm.     The  mortgagee  died,  then  the 


CH.  YI.]  PERSONAL   LIABILITY,    ETC.  121 

expressed  in  the  form  of  a  condition,  might  not  be  rightly  de- 
scribed in  another  instrument,  as  a  covenant.     It  is  said,  a 


mortgagor,  and  the  right  of  redemption  was  sold  to  the  plaintiff;  and  subse- 
quently, the  defendant,  as  administrator  of  the  mortgagee,  took  possession 
for  breach  of  the  condition  as  to  the  support  of  the  mother.  Upon  a  bill  ia 
equity  to  compel  the  defendant  to  acknowledge  satisfaction  of  the  morto-anfe ; 
held,  the  mother  was  entitled  to  her  entire  support,  independent  of  any  labor 
to  be  performed  by  her ;  that  She  was  not  bound  to  reside  on  the  farm,  to 
entitle  her  to  such  support ;  that  she  could  not  include  in  the  mortgage  the 
expense  of  a  journey  to  visit  a  son,  living  forty  miles  from  the  farm ;  and  that 
having  been  supported,  for  some  time  after  the  mortgagor's  death,  by  his 
son,  without  any  request  from  his  administrators,  and  after  they  had  offered 
to  support  her,  the  cost  of  her  support  during  that  time  could  not  be  charged 
upon  the  mortgage.  Thayer  v.  Kichards,  19  Pick.  398.  As  suggested  in 
the  text,  a  mortgage,  conditioned  for  support  of  the  mortgagee,  admits  of 
compensallon ;_  and  a  purchaser  from  the  mortgagor  will  be  allowed  to  re- 
deem, by  making  compensation  for  past  support,  in  an  amount  to  be  deter- 
mined by  a  master,  and  paying  a  specific  sum  for  the  future.  Austin  v.  Aus- 
tin, 9  Verm.  420.  A  receipt  in  full  of  all  demands  is  no  discharge  of  a  mort- 
gage, conditioned  for  the  future  support  of  the  party  who  gives  the  receipt. 
The  word  demands  must  be  understood  to  refer  to  subsisting  debts,  at  least 
to  such  as  are  absolutely  due  and  susceptible  of  liquidation.  It  cannot  em- 
brace a  right  to  future  support,  which  is  in  its  nature  contingent,  depending 
upon  the  party's  life  for  its  continuance,  and  upon  various  uncertain  circum- 
stances for  its  amount.  Ibid.  An  indenture,  accompanying  a  conveyance 
of  land,  whereby  it  is  let  to  the  grantor,  for  life,  "  for  the  purpose  that  Sam- 
uel should  maintain  Leonard  for  life,"  and  "  of  securing  to  Leonard  the 
maintenance  aforesaid,"  constitutes  the  transaction  a  mortgage.  Lanfair 
V.  Lanfair,  18  Pick.  299.  The  Court  remark  (Ibid.  303,  304)  :  —  "  The  in- 
denture is  to  be  construed  with  reference  to  the  whole  instrument  as  con- 
nected with  the  deed  of  Leonard  to  Samuel,  and  as  a  part  of  the  transaction. 
An  enlarged  and  liberal,  rather  than  a  microscopic  view  is  to  be  taken,  in 
order  to  ascertain  and  carry  into  effect  the  intent  of  the  parties.  It  expresses 
upon  its  face,  that  it  is  given  by  Samuel  to  Leonard  for  the  purpose  of  se- 
curing to  Leonard  the  maintenance  which  Samuel  was  to  provide  lor  Leonard 
and  his  wife.  It  is  a  security.  And  this  is  a  sine  qua  non  of  a  mortgage. 
If  the  instrument  be  made  as  a  security  for  the  payment  of  a  debt  or  the 
performance  of  a  duty,  it  is  a  mortgage,  and  the  substance  and  not  the  mere 
form  of  the  instrument  is  to  be  regarded.  The  effect  of  the  instrument  will 
ascertain  its  legal  character."  Where  a  mortgage  is  conditioned  to  support 
the  mortgagee  and  his  wife  during  their  lives ;  his  administrator  may  fore- 

VOL.    I.  11 


122  THE   LAW   OF  MORTGAGES.  [CH   VI. 

bond,  conditioned  for  the  performance  of  all  covenants,  pay- 
ments, articles,  and  agreements,  comprised  in  a  mortgage, -is 
forfeited  by  non-payment  of  the  mortgage-money  at  the  time 
stipulated  in  the  mortgage.^  Where  such  a  bond  was  given, 
and  the  mortgage  contained  covenants  against  incumbrances 
and  for  further  assurance,  the  ground  was  taken,  in  defence 
against  an  action  upon  the  bond,  that,  as  the  mortgage  con- 
tained no  covenant  for  payment,  the  proviso  was  merely  in 
advantage  of  the  feoffor,  that  if  he  plfcid  the  money  he  should 
have  back  the  land  ;  and  it  was  in  his  election  to  pay  the 
money  or  lose  the  land  ;  therefore  the  condition  of  the  bond 
did  not  extend  to  such  payment,  but  was  confined  to  the 
other  covenants  in  the  deed,  namely,  to  save  harmless  from 
incumbrances,  &cc.  No  judgment,  however,  was  finally  ren- 
dered.- But  in  another  case,  where  an  obligation  was  given 
to  perform  all  the  covenants  and  conditions  in  an  indenture 
of  mortgage  ;  which  mortgage  contained  a  proviso,  that,  if 
the  mortgagor  paid  the  money  at  the  day,  the  mortgage 
should  be  void;  in  an  action  upon  the  bond,  after  much  de- 
liberation, the  Court  decided  for  the  plaintiff.^ 

29.  Although  a  mortgage  in  this  country  does  not  ordina- 
rily contain  a  covenant  for  payment  of  the  mortgage  debt ; 
it  is  usually  in  the  form  of  a  warranty  deed,  with  the  cove- 
nants of  title  incident  to  that  form  of  conveyance.  Some 
questions  have  arisen  with  regard  to  the  legal  effect  of  these 
covenants,  more  particularly  when  considered  in  connection 
with  the  reciprocal  covenants  in  an  accompanying  absolute 
deed  from  the  mortgagee  to  the  mortgagor,  (e) 

1  I'ow.  12  a.  3  Tooms  i'.  Chandler,  2  Lev.  116  ;  3 

-  IJrisLoe  v.  Kinp:,  Cro.  Jac.   281 ;     Keb.  3»7. 
Brisloe   v.   Kiiipe,    Velv.   20G,  2  Lev. 
110. 


close  for  breach  occurring  both  before  and  since  his  death.     The  widow 
need  not  appear  in  the  action.     Marsh  v.  Austin,  1  Allen,  235.     See,  fur- 
ther. Gilson  V.  Gilson,  2  Allen,  115  ;  Pettee  v.  Case,  lb.  546  ;  also,  ch.  8. 
(c)  See  Swatman  v.  Ambler,  8  Exch.  72.     Upon  the  covenant  against 


CH.  VI.]  PERSONAL    LIABILITY,    ETC.  123 

Thus  to  an  action  on  the  covenant  of  seisin,  in  a  deed  of 
warranty  from  the  defendant  to  the  plaintiff,  the  defence  was 


incumbrances  in  a  mortgage,  it  is  held,  that  only  nominal  damages  can  be 
recovered.  Randell  v.  Mallett,  2  Shepl.  51.  Also,  that  where  the  grantee 
in  a  warranty  deed  gives  back  a  bond  to  reconvey  on  demand,  and  in  the 
mean  time  allows  the  grantor  to  occupy ;  no  action  can  be  maintained  upon 
the  covenants  in  the  deed.  Hatch  v.  Kimball,  2  Shepl.  9.  But  where,  in 
a  mortgage  with  full  covenants  of  warranty,  after  breach  of  condition,  by 
consent  of  parties,  the  equity  of  redemption  was  extinguished  by  a  decree 
of  foreclosure  without  sale,  and  afterwards  the  mortgagee  was  evicted  by 
proceedings  under  a  prior  mortgage  unknown  to  either  party  ;  it  was  held, 
that  the  decree  of  foreclosure  did  not  merge  the  mortgage  in  a  fee,  or  in  any 
way  bar  proceedings  on  the  mortgage  under  the  covenants  of  warranty ; 
that  the  mortgagee  was  not  bound  to  discharge  the  first  mortgage,  but  could 
depend  upon  the  covenants.  Lloyd  v.  Quimby,  5  Ohio,  (N.  S.)  262.  The 
following  miscellaneous  decisions  relate  to  the  operation  of  covenants  made 
in  reference  to  or  connection  with  a  mortgage,  though  not  inserted  in  the 
mortgage  itself.  (See  ch.  19.)  It  has  been  held,  that  where  land  is  sold, 
with  a  covenant  against  incumbrances,  and  no  eviction  has  taken  place,  or 
payment  been  made  of  the  mortgage  debt,  the  mortgage  cannot  be  set  up 
in  defence  to  a  suit  for  the  price.  Pomeroy  v.  Burnett,  8  Blackf.  142.  But 
if  the  mortgage  exceed  the  debt,  a  court  of  equity  will  enjoin  the  suit,  until 
the  incumbrance  be  reduced  to  the  amount  of  the  debt.  Buell  v.  Tate,  7 
Blackf.  55.  Where  one  takes  a  deed  without  covenants,  knowing  of  incum- 
brances upon  the  land,  and  gives  back  a  mortgage  for  the  price,  but  it  does 
not  appear  that  he  agreed  to  assume  the  incumbrances ;  he  may  pay  them, 
and  deduct  the  amount  from  the  mortgage.  Wolbert  v.  Lucas,  10  Barr,  73. 
Where  a  mortgagee,  under  a  prior  mortgage,  threatened  to  enter  and  expel 
the  covenantee,  who  yielded  to  the  claim,  against  which  he  could  not  defend, 
it  is  a  breach  of  the  covenant  of  warranty  ;  upon  the  ground,  that  an  actual 
ouster  or  expulsion  by  force  of  a  paramount  title  is  equivalent  to  an  evic- 
tion by  legal  process.  Sprague  v.  Baker,  17  Mass.  586.  Where  a  mort- 
gage is  made  to  indemnify  the  mortgagee  against  an  incumbrance  on  other 
land  in  favor  of  a  third  person,  which  land  the  mortgagee  conveys  with  cov- 
enants against  incumbrance,  and  agrees  to  redeem  the  one  to  such  third 
person  ;  it  seems,  the  grantee  may  claim  indemnity  from  the  mortgaged 
premises,  if  evicted,  or  obliged  to  pay  such  incumbrance.  Uphara  v.  Brooks, 
2  W.  &  M.  407.  This  right  is  strengthened  by  his  being  assignee  and 
grantee  of  tlie  mortgagor;  and  he  is  entitled  to  recover  the  premises  from 
an  assignee  of  the  mortgagee,  on  paying  any  debt  from  the  mortgagee  to 
the  assignee,  secured  in  the  mortgage.     Ibid.     But  the  assignee  cannot  hold 


124  THE   LAW   OF   MORTGAGES.  [ciT.    Vl. 

set  np,  that,  at  the  time  of  the  defendant's  making  such  deed, 
the  plaintiff  gave  back  to  the  defendant  a  mortgage  of  the 


ibe  premises  against  third  persons  entitled  to  redeem,  for  any  sum  due  him 
from  the  mortgagee,  but  not  included  in  the  mortgage.  Ibid.  If  the  mort- 
»Ta«Tee"has  bofome  insolvent,  and  his  covenant  thereby  worthless,  yet  the 
grantee  should  obtain  releases  to  the  mortgagee  on  his  covenants  to  the 
grantee,  or  tile  a  good  bond  of  indemnity  against  them.  The  assignee  of 
the  mortgage  is  a  trustee  of  the  land,  to  indemnify  against  the  incumbrance 
referred  to  in  the  mortgage.  Ibid.  The  assignee,  being  in  possession,  was 
held  bound  to  pay  rents  when  they  ought  to  have  been  received,  whether 
actually  collected  or  not.  Ibid.  Conveyance  by  a  mortgagor  in  possession, 
with  a  bond  of  indemnity  to  the  purchaser,  against  the  mortgage.  Judg- 
ment being  afterwards  recovered  upon  the  mortgage  against  the  terre-tenant, 
without  actual  notice  to  the  mortgagor,  and  the  land  sold  on  execution  j 
held,  in  a  t^uit  upon  the  bond,  if  the  defendant  had  notice  of  the  prior  suit, 
he  was  bound  by  the  judgment,  and  must  repay  the  purchase-money  to  the 
plaintiff.  If  he  had  not  notice,  he  might  make  the  same  defence  which  he 
could  have  made  to  the  action  on  the  mortgage.  Gulp  v.  Fisher,  1  Watts, 
494.  Where  land,  subject  to  mortgage,  is  conveyed  with  warranty,  the 
covenant  runs  with  the  land,  and  is  bound  by  the  lien  of  a  judgment  against 
the  grantee  or  his  assigns ;  and  if  the  grantor  subsequently  acquires  a  title 
to  the  land,  under  a  foreclosure  of  the  mortgage,  such  title  accrues  to  the 
benefit  of  a  purchaser  at  the  sheriff's  sale  under  the  judgment,  and  the  for- 
mer is  estopped  from  questioning  the  title  of  the  latter.  Kellogg  v.  Wood, 
4  Paige,  578.  The  grantor  is  also  bound  to  indemnify  the  purchaser  at  the 
sheriff's  sale  against  the  mortgage,  if  it  remains  unpaid,  or  if  the  lien  is  con- 
tinued by  the  substitution  of  a  new  mortgage  for  the  purchase- money.  Ibid. 
If  one  owning  land,  subject  to  mortgage  conveys  it  with  warranty,  and  the 
purchaser  conveys  to  a  third  person  with  warranty,  both  covenants  run 
with  the  land  ;  and  if  the  second  purchaser  afterwards  conveys  to  the  orig- 
inal grantor,  the  covenants  in  the  deed  from  the  first  purchaser  are  merged 
at  law,  so  far  as  respects  the  lien  of  the  mortgage.  But  if  in  the  mean  time 
the  first  purchaser  has  agreed  with  his  grantor  to  pay  off  the  mortgage,  the 
covenants  are  not  merged  in  equity,  but  will  pass  to  a  subsequent  purchaser, 
and  give  him  an  etiuitable  claim  against  the  first  purchaser,  for  an  indem- 
nity against  the  mortgage.  Ibid.  See  Law  Register,  Feb.  1863.  Where  a 
ujortpage  was  given  to  secure  the  price  of  land  sold,  the  mortgagee  repre- 
senting that  he  was  the  owner;  in  a  suit  for  foreclosure,  the  mortgagor 
set  up  as  a  defence,  that  this  representation  was  untrue,  and  that  he  had 
since  purchased  the  estate  from  a  third  person.  Held,  insufficient,  for  want 
of  tlic  additional  fact,  that  the  misrepresentation  was  the  inducement  to  the 


CH.    VI.]  PERSONAL   LIABILITY,    ETC.  125 

same  land,  to  secure  the  entire  consideration,  of  which  no 
part  had  been  paid ;  and  that  the  mortgage  contained  the 
same  covenants  as  the  absolute  deed.  It  was  held,  that  the 
covenants  of  the  mortgage  did  not  operate  as  a  rebutter 
to  the  claim  of  the  plaintiff,  and  that  the  action  was  main- 
tainable. The  Court  remark  :  —  "It  is  then  said,  that  (the 
defendant's  demand)  should  operate  as  a  rebutter  to  the  de- 
mand of  the  plaintiff,  to  avoid  circuity  of  action.  The  prin- 
ciple of  rebutter  is  one  well  known  in  law,  and  is  to  be  ap- 
plied in  all  proper  cases.  The  present  does  not  seem  to  us 
to  be  one.  It  might  do  injustice  to  the  plaintiff.  The  de- 
fendant holds  the  plaintiff's  notes  of  hand  secured  by  her 
mortgage.  Various  cases  might  be  readily  supposed,  where 
such  a  defence  ought  not  to  prevail ;  as  in  cases  of  large  pay- 
ments advanced  towards  the  purchase-money,  and  a  mort- 
gage to  secure  only  a  small  residue,  and  that,  by  the  terms 
of  the  contract,  to  be  paid  at  some  remote  future  day.  There 
is  no  necessity  for  permitting  this  defence,  with  a  view  of 
protecting  the  rights  of  the  defendant  in  reference  to  his 
counter  demands.  The  entry  of  judgment  may  be  postponed, 
if  the  case  requires  it,  to  await  a  set-off,  after  the  defendant 


mortgagor's  purchase  of  the  land.  M'Fadden  v.  Fortier,  20  III.  509.  Evic- 
tion from  part  of  the  land  is  a  defence  to  a  suit  for  foreclosure  ;  and  proceed- 
ings will  be  stayed  till  the  question  of  damages  is  settled  either  by  a  suit  at 
law,  or  by  directing  an  issue  or  reference  to  a  master.  The  last  course  will 
generally  be  taken,  unless  the  complainant  requests  an  issue.  Coster  v. 
Monroe,  &c.  1  Green,  Ch.  467.  An  outstanding  title  or  incumbrance,  there 
having  been  no  eviction,  as  a  right  of  dower  in  the  grantor's  widow,  is  no  rea- 
son for  refusing  foreclosure  of  a  mortgage  for  the  price,  though  the  convey- 
ance was  with  warranty.  Glenn  v.  Whipple,  1  Beasl.  (N.  J.)  50.  Where 
it  is  sought  to  enjoin  a  foreclosure,  without  proceeding  by  civil  action  in  the 
district  court,  on  the  ground  that  the  mortgage  was  executed  to  secure  the 
purchase-money;  that  the  covenants  of  the  deed  were  broken  ;  and  that  the 
vendor  had  no  title  to  the  land  ;  the  bill  should  allege  either  fraud  or  mis- 
take, or  show  that  the  complainant  would  sustain  irreparable  injury,  by  be- 
ing turned  over  to  his  legal  remedy  upon  the  covenants.  Crocker  v.  Rob- 
ertson, 8  Clarke,  (Iowa,)  404. 

11  * 


126  THE   LAW   OF   MORTGAGES.  [cil.    VI. 

shall  have  perfected  a  judgment  on  his  claims.  This  seems 
to  us  a  more  proper  mode  than  to  allow  the  claims  of  the 
defendant,  as  covenantee  under  the  mortgage  deed,  to  defeat 
the  prct^ent  action."  ^  So  the  grantee  in  the  absolute  deed 
may  in  such  case  maintain  an  action  upon  the  covenant 
against  incumbrances.  The  mortgage  is  no  estoppel,  be- 
cause the  mortgagor  may  have  removed  the  adverse  title  be- 
fore making  the  mortgage.  For  the  same  reason,  his  action 
is  not  barred  upon  the  ground  of  preventing  a  circuity  of 
action.  In  these'  points  of  view,  the  two  deeds  are  regarded 
not  as  concurrent  but  successive.  The  mortgage  is  no  bar 
to  the  action  for  the  additional  reason,  that  such  covenant  is 
not  assignable,  and  therefore  did  not  pass  back  to  the  mort- 
gagee.- So,  where  the  grantee  in  a  warranty  deed,  with  a 
mortgage  back,  with'covenants,  brings  an  action  against  one 
who  used  a  highway  which  passed  over  the  land,  upon  the 
grantors  representation  that  it  was  not  a  legal  road,  but  fails 
in  the  suit ;  the  mortgage  does  not  constitute  a  rebutter, 
but  the  grantee  may  bring  an  action  upon  the  covenant, 
and  recover  the  costs  of  the  other  suit.^  And,  on  the  other 
hand,  where  land  is  conveyed  with  covenants  of  general  war- 
ranty, and  at  the  same  time  mortgaged  back  with  like  cov- 
enants ;  the  assignee  of  the  mortgagee  cannot  maintain  an 
action  upon  the  covenants  in  the  mortgage,  and  recover  for 
an  eviction  under  a  judgment  for  dower  against  him  in  favor 
of  the  widow  of  the  mortgagee.* 

30.  The  doctrine,  that  a  grantee  from  one  who  had  no 
title  at  the  time  of  the  conveyance,  but  has  subsequently 
acquired  one,  takes  it  by  estoppel,  in  virtue  of  the  covenants 
in  the  deed,  has  been  applied  to  a  mortgage.  Thus,  where 
land  was  conveyed,  and  at  the  same  time  mortgaged  back, 
(both  conveyances  being  with  covenants  of  warranty,)  and 
the  mortgage  was  assigned,  and,  after  the  assignment,  the 

,r\  '^".")"^'''  ''•  R'""nar(l,  12  Mot.  459,     See  Great  Falls.  &c.  v.  Worster,   15 

4^'l.  4».J;  ace.  Brown  v.   Staples,   28     N.  II.  412. 

Mnir.e  4<.I7      Sec-  Andrews  v.  Wolcott,        »  Haynes  v.  Stevens,  11  N.  H.  28. 

V II  !'.'    .       ^.  *  Smith  V.  Cannell,  32  Maine,  123. 

Hubbard  f.  Norton,  10  Conn.  422. 


CH.    VI.]  PERSOiSrAL   LIABILITY,   ETC.  127 

mortgagor  acquired  a  title  to  the  same  premises  under  a 
sale  for  taxes  assessed  before  the  conveyances ;  held,  the 
mortgagor  could  not  set  up  such  title  adversely  to  his  own 
conveyances,  but  it  enured  instantly  to  the  benefit  of  the 
assignee  of  the  mortgage,  and  the  remedy  of  the  mortgagor 
was  on  his  grantor.^  (/)  So  two  successive  mortgages,  with 
covenants  of  warranty,  were  made  of  the  same  land.  The 
second  mortgagee  bought  the  first  mortgage,  receiving  from 
the  first  mortgagee  a  quitclaim  deed.  On  the  same  day,  the 
second  mortgagee  gave  a  mortgage  with  covenants  to  a  cred- 
itor. There  was  no  proof  which  of  the  two  last  named  deeds 
was  first  delivered ;  but  the  grantee  of  one  was  a  subscribing 
witness  to  the  other,  and  both  were  attested  by,  and  acknowl- 
edged before,  the  same  magistrate.  The  right  of  redemption 
of  the  original  mortgagor  having  expired,  the  last  mortgagee 
brings  ejectment  against  him  for  the  land.  Held,  the  deed  to 
the  plaintiff"  should  be  presumed  to  have  been  made  after  the 
deed  to  his  grantor ;  or,  if  not,  the  covenants  in  the  deed  first 
executed  had  the  effect  to  vest  a  title  in  the  plaintiff",  when 
the  conveyance  was  made  to  him,  hy  estoppel;  and  this  title 
was  effiectual  against  the  defendant.^ 

1  Gardner  v.  Gerrish,  33  Maine,  46.         ^  Dudley  v.  Cadwell,  19  Conn.  218. 
See  Leavitt  v.  Pell,  27  Barb.  822. 

(/)  But  if  one  afterwards  merely  contracts  to  buy  a  part  of  the  premises 
of  one  of  the  mortgagors,  it  does  not  prevent  him  from  acquiring  a  title  un- 
der the  tax  sale,  and  holding  it  for  his  own  benefit.     33  Maine,  46. 


128  THE   LAW    OF  MORTGAGES.  [CH.    VII. 


CHAPTER  VII. 

POWER   OF   SALE. 

1.  Notwithstanding  the  inflexible  rule  considered  at 
length  in  a  former  chapter,^  against  impairing  or  abridging 
the  equity  of  redemption  by  any  special  agreement  of  par- 
ties, the  principle  seems  to  be  now  well  established,  though 
after  great  doubt  and  discussion,  that  a  clause  may  legally 
be  inserted  in  the  mortgage  deed,  empowering  the  mortgagee, 
upon  breach  of  condition,  to  make  sale  of  the  mortgaged 
premises,  pay  his  debt  from  the  proceeds,  and  account  with 
the  mortgagor  for  the  balance.  And  such  sale,  made  after 
the  law-day,  and  in  pursuance  of  the  terms  of  the  mortgage, 
vests  in  the  purchaser  all  the  title  conveyed  by  the  mortgage, 
free  from  the  right  of  redemption.^  The  sale  may  be  for  non- 
payment of  interest.^ 

2.  This  privilege  of  the  mortgagee,  arising  from  an  express 
provision  of  the  deed,  would  seem  at  first  sight  a  departure 
from  tlie  general  principle  above  referred  to,  inasmuch  as  it 
allows  a  particular  contract  to  control  or  override  the  broad, 
equitable  rule  of  protecting  the  mortgagor's  rights  against 
ahy  hard  terms  which  his  peculiar  necessities  might  impose 
upon  him.  A  moment's  reflection,  however,  shows  a  radical 
difl'erence  between  the  cases  to  which  this  rule  has  been  ap- 
plied, and  the  one,  now  under  consideration,  of  a  power  to 
sell.  In  the  former,  by  a  breach  of  condition,  the  estate  is  ab- 
solutely forfeited,  and,  with  its  whole  value  or  proceeds,  for- 
ever lost  to  the  mortgagor.  In  the  latter,  it  is  sold,  and,  as 
will  be  seen,  must  be  fairly  and  judiciously  disposed  of; 
and  the  mortgagor  receives  the  avails,  after  his  debt  is  fully 

*  «ff  fh.  4.  8  Richards  v.  Holm^,  18  How.  143. 

«  Check  V.  Waldrum,  25  Ala.  152 


CH.  vil]  power  op  sale.  129 

liquidated.  The  power  of  sale  is  said  to  apply  solely  to 
the  remedy,  and  not  to  impair  any  riglit  of  the  mort- 
gagor.' [a) 

3.  On  the  other  hand,  the  power  of  sale  does  not  bar  the 
mortgagee'' s  right  to  foreclose  by  judicial  proceedings.^  It  is 
held  that  a  sale  may  be  made,  pending  a  bill  to  foreclose.'^ 
The  remedy  is  cumulative  merely,  and  in  no  respects  affects 
the  jurisdiction  or  proceedings  of  a  Court  of  Chancery.*  Nor, 
in  genera],  does  its  validity  depend  on  proceedings  at  law  or 
a  decree  in  equity.^     It  is  treated  as  a  power  of  attorney.^ 

4.  Contrary  to  the  general  rule,  however,  it  is  sometimes 
held,  that  the  power  can  be  executed  only  through  a  Court 

1  Wilson  V.  Troup,  2  Cow.  195.    See  *  Walton  v.  Corlv,  1  Wis.  420. 

Dobson    V.  Eacey,   3   Sandf.   Ch.   60;  &  Wilson    v.    Watts,    9    Md.    356; 

Bennett  I'.  Union,  &c.  5  Humph.  612 ;  Crocker     v.     Robertson,     8     Clarke, 

Youncr  ?'■  Roberts,  21  Eng.  Law  &  Eq.  (Iowa,)  404;  Leffler  v.  Armstrong,  4 

571 ;  Fanning  v.  Kerr,  7  Clarke,  (Iowa,)  Iowa,  482  ;  Bloom  v.  Van  Rensselaer, 

450.  15  111.  503. 

^  Marriott  v.    Givens,  8  Ala.    694;  ^  Smith    v.    Bovin,   4   Allen,   518; 

Carradine    v.   O'Connor,  21    lb.    573;  Mass.    Gen.    Sts.    716.      Whether,   in 

Morrison  v.  Bean,  15  Tex.  257.  this  aspect,  a  married  woman  can  thus 

8  Brisbane  v.   Stoughton,  17  Ohio,  bind  herself,  see  Roarty  v.  Mitchell,  7 

482.  Gray,  243. 

(a)  The  civil  law  implies  a  power  of  sale  in  the  mortgagee,  and  even  an 
express  agreement  will  not  deprive  him  of  it.  1  Dom.  360.  In  Virginia, 
it  is  said  to  be  invalid.  4  Kent,  148,  n.  It  has  been  held  in  Virginia, 
(Taylor  v.  Chowning,  3  Leigh,  654,)  that  a  sale  under  a  power  is  void- 
able by  the  mortgagor,  the  character  of  creditor  and  trustee  being  incon- 
sistent ;  but  if  the  sale  is  a  fair  one,  and  acquiesced  in  by  the  mortgagor,  it 
will  bind  him.  In  Ohio,  a  power  of  sale  may  be  given  to  a  third  person  for 
the  mortgagee's  benefit.     Brisbane  v.  Stoughton,  17  Ohio,  482. 

The  power  of  sale  has  sometimes  been  claimed,  in  virtue  of  a  special 
agreement,  for  the  mortgagor.  But  a  proviso,  that,  if  the  mortgagor  raise,  or 
be  able  to  raise,  money  to  j)ay  the  debt,  by  selling  or  re-mortgaging,  the 
mortgagee  shall  reconvey  to  him,  that  he  may  do  it ;  does  not  give  the  mort- 
gagor a  power  of  sale,  which  he  would  have  without  it,  but  is  merely  a  cove- 
nant to  reconvey  to  him  for  the  purpose  expressed.  Coffing  v.  Taylor,  16 
111.  457. 

Mortgage  to  secure  notes  payable  in  three  years.  The  parties  afterwards 
agreed  in  writing,  that  the  mortgagor  might  cut  and  haul  otF  timber,  and 
might  sell  the  property  to  pay  the  debt,  within  four  years  from  the  date  of 
the  notes.  Held,  a  suit  for  foreclosure  did  not  lie  till  the  end  of  the  four 
years.     Eogers  v.  Mitchell,  41  N.  H.  154. 


130  THE   LAW   OF  MORTGAGES.  [CE.   VII. 

of  Equity.^  In  Pennsylvania  \he  distinction  is  made,  that 
equity  can  interfere  only  where  the  power  is  to  be  executed 
through  a  trustee.^  So,  upon  a  bill  filed  by  the  infant  heir 
of  a  mortgagor,  a  sale  under  a  power  was  restrained,  and 
the  sale  conducted  by  the  master,  after  an  inquiry  as  to  the 
amount  of  the  debt.^  So,  where  one  surrendered  an  equity 
of  redemption,  being  ignorant  that  the  mortgage,  to  which 
the  vendor  represented  the  land  as  subject,  contained  a 
power  of  sale  after  a  year's  default,  the  mortgage  not  being 
on  record  ;  and  filed  his  bill  for  an  injunction  against  the 
mortgagees,  alleging  a  sale  by  such  ignorance,  and  that  the 
mortgage  was  fraudulent ;  but  the  fraud  and  all  intent  to 
mislead  were  denied  in  the  answer  :  a  temporary  injunc- 
tion was  granted,  to  allow  him  time  to  raise  money  and  re- 
deem."* And  where  a  mortgage  gives  a  power  of  sale  to  the 
mortgagee  in  a  certain  time  after  the  debt  becomes  due ;  it 
is  held  that  no  action  can  be  maintained  upon  the  mortgage 
within  that  time.^  So,  if  the  terms  of  the  power  itself  require 
some  act  of  foreclosure,  as  preliminary  to  the  sale;  the  sale 
will  be  invalid,  unless  such  act  be  performed.  Thus,  where 
the  mortgage  provides  that  the  mortgagee,  upon  breach  of 
condition,  may  enter  and  take  possession  immediately,  and 
sell  the  land  ;  a  sale  cannot  be  made  without  a  previous 
entry  and  taking  possession,  or  at  least  a  demand  for  pos- 
session and  refusal.'^ 

5.  In  consequence  of  the  delays  incident  to  the  usual 
equity  of  redemption,  a  power  of  sale  has  now  become  a 
very  frequent  provision  in  deeds  of  mortgage.  It  will  be 
profitable,  therefore,  as  indicating  the  most  desirable  form 
in  which  this  power  may  be  expressed,  and  the  proper  safe- 
guards of  the  mortgagor's  rights,  with  which  its  exercise 
should  be  surrounded,  to  take  a  general  view  of  the  judi- 
cial discussions,  through  which  the  principle  in  question  has 

1  Ford  V.  Russell,  1  Freetn.  Cli.  42.  *  Piatt  v.  M'Clure,  3  W.  &  M.  151. 

'  Bradk-y  i-.  Chester,  &c.  30  Pcnu.  .  &  Second,    &c.    v.    Piatt,    5    Duer, 

"1.  675. 

»  \  an  Bergen  v.  Deraarest,  4  Johns.  «  Roarty  v.  Mitchell,  7  Gray,  243. 
Ch.  37. 


CH.   VII.]  POWER   OF   SALE.  131 

been  arrived  at.  Perhaps  there  is  no  one  in  the  whole  law 
of  mortgages,  at  last  firmly  established,  which  in  its  prog- 
ress has  been  more  seriously  questioned  or  more  earnestly 
resisted,  as  a  manifest  infringement  upon  the  privilege,  so 
carefully  guarded,  of  redeeming  estates,  which  have  been 
conveyed  only  by  way  of  security  for  debt.  The  final  result 
of  the  decisions  is  said  to  be,  that  a  power  of  sale  may  be 
exercised  by  the  mortgagee,  where  it  is  free  from  doubt}  (b) 
It  will  be  jealously  watched,  and  declared  void  for  the  slight- 
est unfairness  or  excess,  or  for  anything  which  prevents  com- 
petition ;  2  and  the  sale  will  be  strictly  construed  as  against 
the  mortgagee.  Thus  where  it  is  not  made  for  money,  but 
for  an  article  of  fluctuating  value,  the  vendor  is  chargeable 
with  its  highest  market  value.^  And  an  injunction  may  be 
granted  against  a  sale  under  the  power,  upon  a  bill  which 
alleges  a  tender  of  the  debt.  Nor  is  it  a  valid  objection,  that 
in  such  bill  the  land  is  imperfectly  described.*  (c) 

6.  Mr.  Coventry  says  :  -^  —  "  Mortgages  of  this  description 
are  comparatively  of  modern  date.  Their  validity  was  at 
first  much  questioned,  and  when  the  doubts  surrounding 
their  introduction  were  removed,  they  were  for  a  consider- 
able time,  and  are  even  now  in  some  degree,  viewed  as  a 
harsh  measure,  and  only  to  be  used  where  the  money  lent 

1  Curling  V.  Shuttleworth,  6  Bing.  ^  Longwith  v.  Butler,  3  Gilm.  (111.) 
121.      See    Green   v.   Tanner,  8  Met.     32. 

423;  Wilson  v.   Troup,   2  Cow.   195;         ^  Benhara  y.  Rowe,  2  Cal.  387. 
Clay  V.  Willis,  1  B.  &  C.  364 ;  Gorson         *  Conant  v.  Warren,  6  Gray,  562. 
V.  Blakey,  6  Miss.  273  ;  Destrelian  v.        ^  I  Pow.  9  a,  n.  1. 
Scutlder,    11    Miss.    484;    Mitciiell   v. 
Began,  11  Rich.  686  ;  Chikls  v.  Childs, 
10  Ohio  St.  342;  36  Penn.  141. 

(6)  Mr.  Coventry  remarks  (1  Pow.  14,  n.)  that  the  case  of  Stabback  v. 
Leat,  a  leading  decision  upon  this  subject,  (Coop.  46,)  when  attentively  con- 
sidered, does  not  militate  with  the  doctrine  laid  down  by  him  as  to  the  valid- 
ity of  a  power  of  sale ;  and  that  the  report  of  the  case  is  taken  from  a  hasty 
note  on  a  brief,  and  has  very  little  to  recommend  it  either  in  terms  or  in 
substance. 

(c)  It  is  held  in  Indiana,  that,  under  Rev.  Stats.  1843,  §  58,  a  second 
mortgagee  is  not  affected  by  a  sale  under  a  power  in  the  first,  but  may  re- 
deem it.     Howe  V.  Woodruff,  12  Ind.  214. 


132  THE   LAW   OF  MORTGAGES.  [CH.    VII. 

approaches  very  nearly  the  value  of  the  estate  mortgaged, 
or  where  the  interest  is  likely  to  run  in  arrear.  A  mortgage 
of  tiiis  description  is  certainly  a  prompt,  powerful  security, 
compared  with  the  common  mode  of  mortgaging.  It  is, 
however,  not  inequitable  in  its  results.  It  presses  hard  upon 
the  mortgagor  in  point  of  time,  but  it  takes  no  unfair  advan- 
tage of  him  in  the  end;  for,  after  payment  of  the  money  lent, 
the  surplus  is  handed  over  to  the  borrower,  and  not  kept  by 
the  mortgagee,  as  is  the  case  on  a  foreclosure.  The  evil  of 
the  former  mode  of  mortgaging  is,  that  the  mortgagee,  in 
proceeding  for  the  recovery  of  his  money,  is  liable  to  be  de- 
layed for  an  indefinite  time  in  chancery.  The  new  mode  is 
framed  with  a  view  to  a  settlement  out  of  court." 

7.  Upon  the  same  subject  he  further  remarks  :  ^  —  "  At 
present,  the  principles  of  a  sale  and  mortgage  are  entirely 
distinct.  In  a  mortgage,  the  lender  has  nothing  to  do  with 
the  land  ;  he  looks  merely  to  the  security  and  repayment  of 
his  money.  In  a  sale,  the  purchaser  gives  up  his  money  for- 
ever, and  looks  solely  to  the  land.  It  must  be  evident,  that 
the  principles  applicable  to  the  one  transaction  essentially 
differ  from  those  governing  the  other.  The  mode,  it  is  ap- 
prehended, which  best  accomplishes  the  object  intended,  is 
one  where  a  mortgage  with  all  its  incidents  is  preserved, 
and  the  mortgagee  himself  is  empowered  to  sell,  if  his 
money  be  not  paid,  at  the  expiration  of  six  months'  notice. 
It  will  be  observed,  that  in  making  the  mortgagee  entire 
master  of  the  estate,  he  is  not  only  invested  with  the  con- 
trol of  his  own  property,  but  is  also  a  trustee  of  the  equity 
of  redemption,  with  absolute  power  to  dispose  thereof,  not 
exactly  for  the  best  advantage  of  his  cestui  que  trust,  but  for 
his  own  benetit,  so  far  at  least  as  his  trusteeship  stands  in 
the  way  of  a  peremptory  or  immediate  realization  of  his 
money.  This  is  a  character  incompatible  with  a  trustee; 
he  is  not  free  to  act  for  the  exclusive  benefit  of  his  cestui 
que  trust ;  he  is  first  to  serve  his  own  purpose  regardless  of 
those  for  wliom  he  stands  trusted,  and  then,  having  secured 

1  1  I'uw.  <j  a,  n.  1.     Sec  General  v.  Hardy,  -4  Eng.  Law  &  Eq.  44. 


CH.   Vir.]  POWER   OF   SALE.  133 

himself,  he  becomes  a  stakeholder  as  to  the  residue  for  the 
mortgagor.  This  inconsistent  character  is  the  most  objec- 
tionable featm'e  of  the  form  before  referred  to,  and  it  appears 
to  have  received  the  censnre  of  the  present  Lord  Chancellor; 
yet  it  is  the  editor's  favorite  form,  as  he  had  occasion  to  feel 
the  inconvenience  of  the  mode  recommended  by  his  Lord- 
ship. In  a  late  case  not  yet  reported,  Lord  Eldon  is  under- 
stood to  have  said,  '  Here  the  mortgagee  is  himself  made  the 
trustee.  It  would  have  been  more  prudent  for  him  not  to 
have  taken  upon  himself  that  character.  But  it  is  too  much 
to  say,  that  if  the  one  party  has  so  much  confidence  in  the  other 
as  to  accede  to  such  an  arrangement,  this  Court  is  for  that 
reason  to  impeach  the  transaction.  It  is  next  provided,' 
continued  his  Lordship,  '  that  if  the  mortgagor  shall  make 
default  in  paying  the  sums  stated  at  the  appointed  time,  the 
mortgagee  may  make  sale,  and  absolutely  dispose  of  the 
premises  conveyed  to  him.  .  It  must  be  recollected,  that  this 
is  a  clause  to  be  acted  upon,  not  by  a  middle  person,  but  the 
mortgagee  is  himself  made  trustee  to  do  all  those  acts.  The 
deed  seems  to  me  of  a  very  extraordinary  kind,  and  there 
are  clauses  in  it  upon  which  it  would  be  very  dilHcult  to 
induce  a  court  of  equity  to  act.'  Roberts  v.  Bozon,  Chan. 
Feb.  1825,  Ms." 

8.  Mr.  Coventry  proceeds  to  remark,  that,  "  the  above  ob- 
servations of  his  Lordship  were  thrown  out  in  the  exuber- 
ance of  his  dubitations,  and  were  perfectly  gratuitous,  and 
obviously  of  a  first  impression;"  and  to  express  his  own 
decided  preference,  in  point  of  convenience  and  simplicity, 
of  the  practice  which  Lord  Eldon  considered  of  doubtful 
propriety,  over  the  other  method,  of  resorting  to  the  aid  of 
trustees.  "  In  some  deeds,  assuming  the  character  of  a  mort- 
gage, with  trusts  for  sale,  it  will  be  found  that  the  proviso 
for  redemption,  and  every  feature  of  the  ordinary  mortgage, 
is  omitted.  This  converts  the  deed  into  a  conveyance  for 
the  payment  of  debts ;  and  it  seems  clear,  that,  to  such  a 
species  of  mortgage,  if  it  can  be  so  called,  the  peculiar  doc- 
trines  of  tacking,   priority,   foreclosure,   &c.,   are   irrelevant. 

VOL.  I.  12 


234  THE   LAW   OF   MORTGAGES.  [CH.    VIL 

Indeed,  such  an  instrument  may  be  more  appropriately  de- 
nominated a  composition-deed  than  a  mortgage;  and  it  is 
apprehended,  that  the  learning  relating  to  that  description  of 
deed  will  be  found  applicable  to  a  conveyance  by  way  of 
mortgage,  without  a  proviso  for  redemption."  Mr.  Coventry 
cites,  as  sustaining  these  views,  the  case  of  Martha  Pettit, 
(Vice-Chan.  12th  Aug.  1825,)  in  which  there  was  a  convey- 
ance to  and  to  the  use  of  the  petitioner,  her  heirs,  &c.,  in 
trust,  that  she  and  they  should,  immediately,  or  when  they 
should  think  fit,  with  or  without  the  consent  of  the  grantor, 
sell  the  estate,  and  stand  possessed  of  the  proceeds  in  trust, 
first,  to  retain  and  discharge  the  sum  of  £1,200  and  interest, 
bein»  a  sum  borrowed  previously  upon  a  deposit  of  title- 
deeds,  and  a  covenant  to  execute  a  future  mortgage,  the  fu- 
ture interest  and  the  expenses  of  the  trust,  and  pay  over  the 
surplus  to  the  grantor.  Between  the  loaning  of  the  money 
and  the  execution  of  this  deed,  the  petitioner  lent  to  the 
grantor  £1,350,  with  a  warrant  of  attorney  to  confess  judg- 
ment. The  petition  was  to  tack  the  judgment  debt  to  the 
mortgage,  the  grantor  having  become  bankrupt.  The  Vice- 
Chancellor  held,  that  the  conveyance  was  not  a  mortgage, 
but  a  conveyance  in  trust  to  sell  for  payment  of  debts,  and 
ordered  that  the  petitioner  should  reconvey,  upon  receiving 
£1,200  and  interest.  Upon  the  same  subject,  Mr.  Powell 
remarks:^  —  "I  am  not  aware  that  any  case  has  occurred, 
where  the  transaction  appears  to  have  been,  in  its  original 
nature^  a  mortgage  or  pledge  by  way  of  security  for  money, 
in  which  the  validity  of  a  sale  under  a  trust  of  this  nature, 
vested  in  trustees,  without  the  concurrence  of  the  mortgagor 
or  his  representatives,  or  a  decree  for  foreclosure,  or  for  sale 
for  payment  of  the  money  lent,  has  come  under  the  consid- 
eration of  a  court  of  equity ;  but  unless  such  trust  for  sale 
be  considered  as  clearly  distinguishable  in  principle  from 
a  power  to  sell,  in  default  of  payment  at  a  limited  period, 
lodged  in  the  mortgagee  himself,  the  opinion  of  the  Court  in 
the  case  of  Croft  v.  Powel,^  seems  to  me  to  raise  at  least 
1  1  I'ow.  10.  2  Com_  R.  603. 


en.   VII.]  POWER   OF   SALE.  135 

considerable  grounds  for  doubting,  whether  the  trustees  alone, 
in  such  a  case,  can  make  an  absolute,  irredeemable  title, 
without  the  direction  of  a  court  of  equity." 

9.  The  case  referred  to  was  substantially  as  follows  :  A. 
conveyed  an  estate  to  B.,  taking  back  a  defeasance,  which 
provided,  that,  upon  payment  of  a  certain  sum  within  one 
year,  B.  should  reconvey ;  but,  if  he  failed  to  pay  it  within 
the  year,  B.  should  mortgage  or  absolutely  sell  the  lands  free 
from  redemption,  and  from  the  proceeds  pay  the  debt,  and 
account  for  the  balance  to  A.  Some  years  afterwards,  B. 
conveyed  to  C,  the  defeasance  being  mentioned  and  ex- 
cepted in  the  deed,  and  A.  knowing  and  assenting  to  the 
previous  agreement  for  sale.  A.  brings  a  bill  to  redeem 
from  C.  Held,  as  between  A.  and  B.,  the  conveyance  was 
a  mortgage,  and,  in  B.'s  hands,  redeemable  at  any  time  ;  and 
that,  whether  B.  might  have  conveyed  an  irredeemable  estate 
to  C.  or  not,  the  express  exception  of  the  defeasance  in  the 
deed  to  C.  showed  an  intention  to  leave  it  still  in  force. 
The  case  was  distinguished  from  that  of  a  trustee,  author- 
ized to  sell  for  payment  of  debts,  &c.,  there  being,  in  such 
case,  no  original  mortgage  and  no  one  to  redeem.  The 
Court  further  remarked,  that  C.  would  have  required  A.  to 
join  in  the  deed,  had  he  expected  an  absolute  title ;  and 
that,  as  he  bought  with  notice  of  the  trust  with  which  B. 
was  chargeable,  it  was  also  binding  on  him. 

10.  Upon  this  case  Mr.  Powell  remarks,^  that  it  throws  a 
doubt  over  the  efficacy  of  a  power  to  sell,  in  passing  an  irre- 
deemable title,  no  less  where  the  power  or  trust  is  vested  in 
the  mortgagee  himself,  than  where  it  is  vested  in  trustees  ; 
because  the  difierence  between  these  cases  is  not  in  principle 
and  substance,  but  merely  in  form,  which  courts  of  equity 
will  not  regard.  On  the  other  hand,  Mr.  Coote  says,'^  the 
case  of  Croft  v.  Powel  was  considered  as  raising  consider- 
able grounds  for  doubt  as  to  the  validity  of  powers  to  sell ; 
but,  so  far  from  it,  it  will,  on  consideration,  be  seen  to  be 
rather  an  authority  in  favor  of  these  powers. 

1  1  Pow.  11.  -  Coote,  171. 


136  THE   LAW   OF   MORTGAGES.  [CII.    VII. 

11.  Cases  in  England,  later  than  those  referred  to  by  these 
\vriters,  seem,  at  least  impliedly,  to  settle  the  legal  validity 
of  a  power  of  sale.  Thus  the  plaintiff,  being  indebted  to 
the  defendant,  gave  him  an  absolute  deed  of  his  farm,  taking 
back  a  defeasance.  He  afterwards  received  further  advances, 
till  he  owed  about  $600.  The  parties  then  agreed,  that  the 
defendant  should  have  the  farm  for  $800,  and  the  defendant 
gave  the  plaintiff  a  note  for  the  excess  of  that  sum  over  the 
mortgage  debt,  and  the  defeasance  was  surrendered  ;  but  it 
was  verbally  agreed,  that  the  defendant  should  sell  the  farm, 
and  the  plaintiff  should  have  what  he  received  over  $800, 
after  paying  him  for  his  time  and  trouble.  The  defendant 
accordingly  sold  the  farm  at  auction,  and  himself  became 
the  purcliaser.  Held,  the  transaction  constituted  a  mort- 
gage, with  power  of  sale,  and  the  plaintiff  was  entitled  to 
redeem.^ 

12.  And  the  same  point  seems  to  be  determined  in  con- 
nection with  the  question  of  title,  when  claimed  under  a  sale 
by  the  mortgagee.  Thus  a  second  mortgage  was  made,  sub- 
ject to  the  first,  to  secure  a  sum  specified,  and  also  future 
advances,  with  a  proviso  that,  unless  payment  should  be 
made  within  fourteen  days  after  demand,  it  should  be  law- 
ful for  the  mortgagee,  and  he  was  thereby  required,  to  sell 
the  premises  either  absolutely  or  conditionally,  or  to  lease 
them  for  any  number  of  years,  at  such  rents  as  he  might 
think  proper ;  and,  from  the  proceeds,  first,  to  pay  the  ex- 
penses of  sale,  then  the  first  mortgage,  unless  the  sale  were 
made  suljject  thereto,  then  the  second  mortgage,  and  the  sur- 
plus to  the  mortgagor.  It  was  covenanted,  that  the  mort- 
gagor should  join  in  the  sale,  and  execute  the  conveyance  ; 
but  further  declared,  that  this  should  not  be  necessary  to  per- 
fect the  title,  but  that  it  was  intended  only  for  the  satisfac- 
tion of  the  purchaser.  Upon  a  bill  in  equity,  by  an  assignee 
of  the  mortgage,  to  enforce  an  agreement  to  purchase  the 
premises ;  it  was  held,  by  Sir  William  Grant,  that  the  de- 

1  Hobson  v.  Boll,  2  Bcav.  17. 


CH.    YII.]  POWER   OF   SALE.  137 

fendant  could  not  require  that  the  mortgagor  should  be  a 
party  to  the  conveyance  ;  the  covenant  to  that  effect  being  a 
mere  contract  between  the  parties  to  the  mortgage  ;  and  that 
the  power  of  sale  was  not  in  any  way  inconsistent  with  the 
nature  of  the  transaction  as  a  mortgage.^ 

13.  In  Sanders  v.  Richards,'-^  a  legal  mortgage  with  a 
power  of  sale  was  created  by  an  administrator,  in  favor  of 
one  who  held  the  title  deeds,  by  way  of  deposit  from  the 
intestate,  to  secure  a  debt  from  the  latter,  and  a  sum  ad- 
vanced to  the  administrator.  The  mortgagee  files  a  bill 
against  a  purchaser  for  specific  performance.  Held,  the  ad- 
ministrator and  cestuis  que  trust  must  be  made  parties.  But 
the  notice  required  by  the  power  of  sale  need  only  be  given 
to  the  mortgagor  and  those  claiming  under  him,  and  not  to 
those  claiming  by  paramount  title  to  him,  but  subject  to  the 
mortgage  ;  even  though  they  may  have  a  right  to  redeem, 
and  to  an  account  of  the  proceeds  of  sale.^ 

14.  The  sale  may  be  made  upon  special  conditions,  if  not 
of  a  depreciating  character.*  It  has  been  said,  that  if  the 
power  is  sought  to  be  exercised  for  exorbitant  purposes,  with- 
out due  regard  to  the  interests  of  the  parties,  the  Court  will 
interfere  ;  but  not  without  a  deposit  of  the  sum  to  which  the 
mortgagee  is  entitled.^ 

15.  Where  a  power  of  sale  is  reserved,  with  a  direction 
that  the  surplus  produce  shall  be  paid  to  the  mortgagor,  his 
executors  and  administrators;  if  a  sale  occurs  in  the  lifetime 
of  the  mortgagor,  the  surplus  is  personal  estate,  if  after  his 
death,  real  estate.^  [d) 

16.  It  is  remarked  by  Mr.  Coventry ,7  that  a  power  of  sale, 

1  Corrler  v.  Morgan,  18  Ves.  344.  ^  Mattliie  v.  Edwards,  2  Coll.  465; 

2  2  Coll.  568.  Coote,  174,  175. 

3  Major  V.  Ward,  5  Hare,  598.  «  AVright  v,  Kose,  2  Sim.  &  Stu.  323. 
*  Hyndnian  v.  Hyndman,  19  Verm.  ''  1  Pow.  61  a,  n. 


{d)  In  New  York  the  surplus  goes  to  heirs,  and  is  assets.     Moses  v.  Mur- 
gatroyd,  1  Johns.  Ch.  119. 

12  * 


138  THE   LAW   OF   MORTGAGES.  [CH.    VII. 

not  coupled  with  an  interest,  would  not  perhaps  authorize  a 
power  to  lease;  but,  as  the  mortgagee  after  default  becomes 
absolute  owner,  w4th  power  to  sell  and  convey  in  fee,  perhaps 
he  mav  innke  a  lease,  which  is  a  sale  pro  tanto.  That  a  power 
to  sell  implies  a  power  to  mortgage,  which  is  a  conditional 
sale,  is  asserted  in  the  text ;  but  there  is  an  obvious  difference 
between  the  case  alluded  to  and  the  one  here  contemplated. 
A  power  to  sell  may  by  possible  construction  be  held  to 
authorize  a  sale  only ;  and  it  may  be  contended  that  the 
morto-agee  is  authorized  to  sell  and  not  to  lease,  so  as  to  bind 
the  mortgagor,  except  in  cases  of  necessity.  The  power  of 
sale  in  a  mortgagee  is  construed  rigidly,  and  will  not,  it  is 
apprehended,  warrant  the  exertion  of  any  power  not  definitely 
expressed.  These  powers  are  not  ordinary  powers  operating 
by  means  of  limitation  of  use,  but  trusts,  declared  on  the 
legal  estate  in  the  mortgagee,  giving  him  powers  more  ex- 
tensive than  he  will  have  as  mortgagee.  As  to  all  powers 
therefore  not  expressly  given,  he  must  remain  as  an  ordinary 
mortgagee,  and  can  lease  only  in  case  of  necessity,  (e) 

17.  But,  on  the  other  hand,  a  lease  made  by  the  parties 
subsequently  to  the  mortgage  will  not  of  itself  affect  the 
mortgagee's  right  to  sell  the  property  under  the  power.  Thus 
a  mortgagor  and  a  mortgagee  with  a  power  of  sale  joined  in 
demising  to  a  receiver,  upon  trust,  at  the  request  of  the  mort- 
gagee during  the  continuance  of  the  security,  and  at  the  re- 
quest of  the  mortgagor,  subsequently,  to  lease  in  such  man- 


(t)  Where  a  power  to  si'll  is  given,  not  for  any  special  object,  it  includes 
tbe  power  to  mortgage.  Sampson  v.  AVilliamson,  6  Tex.  102.  See  Albany 
V.  Bay,  4  Cunst.  'J.  Powers  are  sometimes  executed  hij,  as  well  as  coiUainid 
in,  a  mortgage.  Upon  this  subject  it  is  said,  the  execution  of  a  power  by 
way  of  mortgage,  whether  in  fee  or  for  years,  is  but  an  appointment  pro 
tanto,  unless  there  be  on  the  face  of  the  instrument,  or  from  a  comparison  of 
the  wording  of  dilferent  instruments  of  mortgage,  an  indication  of  an  ulte- 
ri<»r  iiiteniiun,  inconsistent  witli  a  future  exercise  of  the  power;  and  the 
rigiil  of  rcdeniplion  will  remain  in  the  persons  entitled  to  the  estate  in  de- 
fault of  api>ointmunt.     Coote,  b2. 


CU.    VII.]  POWER   OF   SALE.  139 

ner  as  the  person  making  such  request  should  appoint,  but 
to  permit  the  mortgagor  to  receive  the  rents  until  default, 
and  after  default  to  receive  the  rents,  towards  the  interest. 
Held,  these  trusts,  though  not  declared  to  be  subject  to  the 
power  of  sale,  were  so  in  effect,  and  the  receiver  was  bound, 
without  the  concurrence  of  the  mortgagor,  to  join  in  convey- 
ing to  a  purchaser  from  the  mortgagee  under  the  power.^ 
18.  The  power  of  sale  does  not  change  the  redeetnable 
character  of  a  mortgage.''^  This  point,  with  others  relating 
to  the  general  subject,  was  fully  illustrated  in  a  case  in  Mas- 
sachusetts,'^ where  it  was  contended,  that  the  insertion  of  a 
power  of  sale,  in  a  deed  which  in  other  respects  had  the  form 
of  a  mortgage,  so  far  changed  the  nature  of  the  mortgagee's 
interest,  that,  contrary  to  the  general  rule,  it  was  subject  to 
attachment  by  his  creditors.  Upon  the  general  subject,  Par- 
ker, C.  J.,  remarks  as  follows  :  —  "It  is  contended  by  the 
plaintiff,  that  this  povjer  to  sell  so  alters  the  character  of  the 
conveyance,  as  to  deprive  it  of  the  qualities  of  a  mortgage,  or 
else  superadds  qualities  which  enlarge  the  estate  in  Whiting, 
so  as  to  render  it  subject  to  his  debts  by  attachment  and  levy. 
We  have  not  seen  any  authorities  which  will  justify  us  in 
adopting  this  opinion  ;  on  the  contrary,  all  the  authorities 
cited  have  a  tendency  to  show,  if  they  do  not  distinctly  de- 
cide, that  where  the  transaction  between  the  parties  to  the 
conveyance  is  in  truth  and  in  fact  a  security  for  debt  or  loan, 
it  shall  have  all  the  attributes  of  a  mortgage,  notwithstand- 
ing there  may  be  an  unlimited  power  to  sell.  Conveyances 
of  this  kind  are  invariably  thus  treated  in  chancery,  and  even 
when  the  parties  have  attempted  in  that  form  of  conveyance 
to  deprive  it  of  the  character  of  a  mortgage,  still  if  it  appear 
to  have  been  a  security  for  debt,  the  Court  will  let  the  debtor 
in  to  redeem.  So  if  there  be  a  limited  period  within  which 
the  mortgagor  shall  redeem,  as  daring  his  life,  his  heir  shall 


1  King  1-.  Heenan,  27  Eng.  Law  &        3  Eaton   i:   Whiting,   3   Pick.   490; 
Eq.  470.  492. 

-  Turner  v.  Bouchell,  3  Har.  &  J. 
99. 


140  THE   LAW    OF   MORTGAGES.  [ciI.  VII. 

nevertheless  be  allowed  to  redeem,  (Howard  v.  Han-is,  1  Vern. 
192.)  Ami  if  there  be  an  agreement  to  make  the  conveyance 
absolute  upon  payment  by  the  mortgagee  of  a  further  sum, 
if  the  money  lent  be  not  paid  at  the  day  appointed,  yet  the 
mortgagor  may  redeem  in  spite  of  this  agreement.  For  where 
the  real  transaction  is  security  for  a  loan,  the  law  deems  all 
restrictions'  upon  the  right  to  redeem,  unconscionable  advan- 
ta^^es  taken  by  the  creditor  of  the  necessities  of  the  debtor. 
.(Manlove  r.  Bale,  2  Vern.  84;  Co.  Lit.  203,  Butler's  note, 
9G.)  An  instrument  of  conveyance,  therefore,  which  appears 
on  the  face  of  it,  or  by  contemporaneous  instruments,  to  be 
intended  as  security  for  the  payment  of  a  debt,  or  the  per- 
formance of  other  conditions,  does  not  lose  this  character 
while  the  estate  remains  in  the  hands  of  the  grantee,  although 
he  may  have  power  to  convey  the  estate  free  from  such  in- 
cumbrance. A  power  to  sell,  executed  to  one  who  relies 
upon  such  power,  and  expects  and  intends  to  purchase  an  ab- 
solute estate,  will  without  doubt  pass  an  unconditional  estate 
to  the  purchaser,  though  this  form  of  conveyance  is  rare  in 
this  country.  But  while  the  power  remains  unexecuted,  the 
relation  of  mortgagor  and  mortgagee  subsists,  if  that  was  the 
relation  created  by  the  instrument  separate  from  the  power  ; 
but  even  under  such  a  power,  it  has  been  held  in  England, 
that  if  the  purchaser  knows  the  original  nature  of  the  trans- 
action, and  appears  not  to  have  purchased  wholly  without 
reference  to  the  conditional  character  of  the  title,  he  will  be 
compelled  in  equity  to  surrender  it,  on  receiving  the  money 
he  has  advanced.  (See  Croft  v.  Powel,  2  Com.  603.)  A 
power  in  the  mortgagee  to  sell,  unexecuted,  leaves  the  estate 
as  it  would  be  if  no  such  power  existed.  The  right  of  re- 
(Icniptiuii,  which  is  the  true  indicium  of  a  mortgage,  remains 
in  the  uiortgagor  and  his  representatives,  until  it  shall  be 
foreclosed  by  entry  or  judgment,  with  possession  as  pre- 
scribed by  law,  or  until,  availing  himself  of  his  power,  the 
mortgagee  shall  have  made  a  conveyance  pursuant  to  it,  to 
some  one  who  shall  intend  to  purchase  an  irredeemable 
eHtale." 


CH.  Vir.]  POWER    OF    SALE.  141 

19.  Various  causes  are  sufficient  to  invalidate  the  sum- 
mary proceeding  of  selling  under  a  power.  Though  the  mort- 
gagor alone  can  raise  this  objection;^  and  he  cannot  make 
it  to  the  prejudice  of  an  innocent  purchaser,  under  the  terms 
of  the  power.  Thus,  where  there  was  a  recorded  mortgage, 
with  a  power  of  sale,  and  an  unrecorded  agreement  between 
the  parties,  that  the  sale  should  be  deferred  in  consideration 
of  the  payment  of  interest;  it  was  held,  that  an  innocent 
purchaser  at  the  sale  under  the  mortgage  was  not  affected 
by  the  agreement ;  and  that  the  mortgagor's  possession  was 
not  implied  notice  of  it.^ 

20.  No  title  passes,  unless  the  essential  requisites  of  the 
power  are  strictly  complied  with.^  As  where  there  is  an 
omission  to  record  an  affidavit  of  sale,  as  provided  in  the 
deed ;  *  or  where  the  advertisement  of  sale  stated  that  it  was 
to  be  made  in  one  year,  when  it  was  intended  to  be,  and 
actually  occurred,  in  the  following  year ;  or  where  the  adver- 
tisement represented  the  lot  to  be  sold  as  very  much  larger 
than  the  true  quantity,  although  including  the  lot  mortgaged.^ 
So,  where  a  notice  of  sale  was  not  signed,  contained  the 
name  neither  of  the  mortgagee  nor  mortgagor,  nor  a  correct 
reference  to  the  records,  nor  the  name  of  the  auctioneer ; 
held,  the  sale  was  invalid.*^  So,  where  there  were  but  two 
mortgages,  and  the  advertisement  represented  that  there  were 
three.  So,  where  no  place  was  named,  and  the  mortgagor 
was  under  twenty-five  years  of  age.^  But  where  a  deed 
empowered  the  grantees  to  sell  certain  real  estate,  first  giving 
thirty  days'  public  notice  of  the  sale,  and  the  notice  was  pub- 
lished five  successive  weeks  in  the  newspaper,  thirty  days  hav- 
ing elapsed  between  the  first  publication  and  the  day  of  sale  ; 
it  was  held,  that  such  notice  was  sufficient.®  So,  where  the 
advertisement  was  not  signed  by  the  mortgagee,  and  de- 
scribed the  land   merely  by  a  number  upon  a  plat,  which, 

1  Benham  v.  Eowe,  2  Cal.  387.  ^  Fenner  v.  Tucker,  G  R.  I.  551. 

2  Beatie  v.  Butler,  21  Mis.  313.  «  Hoffman  v.  Anthony,  B  R.  I.  282. 
^  Ornisby  v.  Tarascon,  3  Litt.  404.  "^  Burnet  v.  Denniston,  5  John.  Ch. 
*  Smith   r.    Provin,   4    Allen,  516;  35. 

Roarty  v.  Mitchell,  7  Gray,  244.  >*  Leffler  v.  Armstrong,  4  Iowa,  482. 


142  11112   LAW    OF   MORTGAGES.  [cil.    VII. 

however,  was  recorded,  the  sale  was  held  good.^  So,  where 
the  power  required  thirty  days'  notice  of  sale  ;  held,  that  a 
sale  thus  notified  may  be  adjourned  for  a  week,  or  from  time 
to  time,  upon  proper  notice,  if  done  in  good  faith,  without 
another  thirty  days'  publication.^  So,  where  the  sale  was 
advertised  to  be  at  "  the  town  of  St.  Joseph,"  which  town 
was  small,  and  nearly  all  the  business  was  done  on  or  near 
the  spot  where  the  sale  really  took  place,  and  there  was  no 
sacrifice  of  the  property  proved  to  have  grown  out  of  the 
vagueness  of  the  description  ;  it  was  held  sufficient.'^ 

21.  If  the  power  authorizes  a  sale  of  the  whole  land,  or 
such  part  as  may  suffice  to  discharge  the  instalments  then 
due,  a  sale  for  instalments  due  and  to  become  due  is  void."^ 
So  a  mortgage  was  payable  by  instalments,  with  a  power 
of  sale  upon  non-payment  of  any  instalment  of  principal 
or  interest  for  thirty  days  after  it  fell  due  ;  the  surplus  pro- 
ceeds to  be  paid  to  the  mortgagor,  after  deducting  inter- 
est and  costs,  and  the  whole  mortgage  debt.  Held,  this  pro- 
vision was  only  intended  to  authorize  a  statute  foreclosure, 
upon  non-payment  of  the  instalments  within  the  time  fixed, 
with  a  right  to  retain  for  the  whole  debt,  if  the  instalment 
and  costs  were  not  paid  before  the  sale  ;  but  did  not  make 
the  whole  debt  due  and  payable  by  a  mere  neglect  to  pay 
the  instalment  within  the  time  prescribed.'^ 

22.  It  has  been  sometimes  held,  that,  if  the  mortgagee  him- 
self purchases  the  estate,  the  sale  is  void.^  More  especially, 
if  the  mortgagor  makes  the  mortgagee  his  attorney.,  to  sell 
the  land,  that  the  latter  can  acquire  a  valid  title  only  through 
a  third  person,  and  with  the  consent  of  the  mortgagor.''^  But 
other  cases  decide,  that,  in  the  absence  of  fraud  or  unfairness, 
the  mortgagee  may  purchase,  either  directly  or  through  an- 
other person.^ 


64 


1  Fit/.palrick  v.  Fitzpatrick,  C  R.  I.  «  Middlesex,    &c.    v.   Minot,  4  Met. 

325 ;  Howard  c.  Ames,  3  lb.  ^11 ;  lien- 

■-  Kidiards  r.  Holmes,  18  How.  143.  ham  r.  Rowe,  2  Cal.  387.     See  Ilynd- 

«  IJeatii-  c.  Hiitler,  21  Mis.  313.  man  v.  H\  ndiiiau,  19  Verm.  9. 

*  Oriiksliy  c.  Tarascon.  3  J/itt.  404.  "  Dobson  r.  Kacey,  4  8eld.  216. 

'  lli.ldiii   f.   Gilbert,  7   Pai-e,  208.  »  Kieliards  v.  Holmes,  18  How.  148; 

bee  Uiclmrds  r.  Holmes,  18  How.  143.  Howard  v.  Davis,  6  Tex.  174. 


CH.  VII.]  POWER   OF   SALE.  143 

23.  Upon  a  bill  in  equity,  to  enforce  performance  of  a  pur- 
chase made  by  the  defendant  of  a  mortgaged  estate,  sold  by 
the  plaintiff  under  a  power  in  the  mortgage,  which  power 
was  to  arise  upon  default  made  in  paying  the  instalments  of 
the  debt ;  it  was  held,  that  the  unsupported  declaration  of  the 
plaintiff,  an  interested  party,  was  not  sufficient  proof  that  the 
event  had  happened,  on  which  the  right  of  exercising  the 
power  of  sale  was  to  arise.^ 

23  a.  A  power  of  sale  is  irrevocable.  It  is  held  not  to 
cease  with  the  death  of  the  mortgagor.^  (/)  But  the  power 
is  extinguished  by  payment  of  the  mortgage,  even  as  against 
a  bond  fide  purchaser.^  The  Court  say:* — "  There  must  be 
a  power.  Payment  extinguishes  it ;  and  the  case  becomes 
the  same  as  if  none  had  ever  been  inserted  in  the  mort- 
gage." {g)  So,  where  a  subsequent  mortgagee  has  tendered 
the  amount  of  debt  and  costs  due  upon  a  prior  mortgage,  a 
sale  under  a  power  in  such  mortgage  is  void.^  So  where 
after  the  debt  became  due,  the  mortgagee,  under  a  power  of 

1  Hobson  V.  Bell,  2  Beav.  22.  *  Ibid.  276. 

2  Bergen  v.  Bennett,  1  Caines'  Cas.         ^  Burnet  v.  Denniston,  5  Johns.  Ch. 
in  Er.  1 ;  Beatie  v.  Butler,  21  Mis.  313.     35. 

^  Cameron  i'.  Irwin,  5  Ilill,  272. 


(/)  The  contrary  has  been  held  in  Texas,  upon  the  ground  that  siieh 
power  is  "  inconsistent  with  the  statute  concerning  the  settlement  of  estates." 
Robertson  v.  Paul,  16  Tex.  472.  Tiie  transferee  of  a  mortgage  in  fee,  con- 
taining a  power  of  sale  exercisable  by  the  mortgagee,  "  his  heirs,  executors, 
administrators,  or  assigns,"  died  intestate.  The  personal  representative  of 
the  intestate  contracted  to  sell  the  estate,  and  procured  a  conveyance  of  the 
legal  estate  from  the  heir,  upon  trust  for  the  personal  representatives  for  the 
time  being  of  the  intestate,  and  to  be  disposed  of  as  they  should  direct. 
Held,  that  he  could  make  a  good  title  to  a  purchaser.  Saloway  v.  Straw- 
bridge,  35  Eng.  Law  &  Eq.  44  7. 

Where  a  power-of-sale  mortgage  was  made  to  A.,  his  administrator  and 
assigns ;  held,  after  the  death  of  A.,  his  administrator  had  power  to  sell,  the 
power  being  coupled  with  an  interest,  and  irrevocable,  and  the  administrator 
specially  named.     CoUins  v.  Hopkins,  7  Clarke,  (Iowa,)  463. 

(^)  So  in  Wood  v.  Colvin,  (2  Hill,  566,)  it  was  held,  that  payment  of  a 
judgment  extinguished  the  power  to  sell  under  it. 


144  THE   LAW   OF   MORTGAGES.  [CH.  VII. 

sale,  sold  a  part  of  the  property  for  enough  to  pay  the  debt 
and  expenses  ;  his  title  to  the  property  was  thereby  extin- 
guished, and  a  sale  of  the  remaining  part  held  invalid.^ 

2-5.  A  :^ale  which  passed  no  title,  made  under  a  power,  was 
held  an  assignment  of  the  mortgage  debt,  to  the  amount  of 
the  purchase-money .2 

26.  Where  a  mortgage  contains  a  power  of  sale,  and,  in 
consequence  of  the  sale  not  being  made  bond  fide,  the  pro- 
ceeds are  insufficient  to  pay  the  debt,  no  action  can  be  main- 
tained for  the  balance  of  such  debt.^ 

27.  A.  made  a  mortgage  to  B.,  with  a  power  of  sale  ;  and 
a  second  mortgage  to  C,  which  referred  to  the  previous  mort- 
gage, and  contained,  amongst  other  covenants,  one  for  fur- 
ther assurance,  "  subject  as  aforesaid."  B.  sold  the  estate 
under  his  power,  and  A.  became  the  purchaser,  and  took  a 
conveyance  to  himself  from  B.  The  purchase-money  was 
not  sufficient  to  pay  the  first  mortgage.  Held,  the  estate 
remained  liable  in  A.'s  hands  to  C.'s  mortgage,  and  the  effect 
of  the  transaction  was  nothing  more  than  a  payment  of 
the  first  mortgage  for  the  benefit  of  the  inheritance.  And 
this  although  there  had  been  an  intervening  purchaser,  who 
had  transferred  the  benefit  of  his  contract  to  A.* 

28.  A  defendant  to  a  creditor's  suit,  being  made  a  party 
as  mortgagee,  with  power  of  sale,  and  also  as  claiming  to  be 
entitled  to  two  other  mortgages  on  the  estate,  w^iich  were  set 
aside,  sold  under  his  power,  and  received  the  purchase-money. 
Ordered,  that  there  should  be  an  account  of  the  purchase- 
money,  and  of  what  was  due  to  the  defendant  for  principal, 
interest,  and  costs,  as  mortgagee,  other  than  the  costs  of  the 
suit ;  and  payment  of  the  balance  to  the  plaintiffs.  The  de- 
fendant had  no  right  to  retain  generally  his  costs  of  suit.^ 

29.  Where  a  provision  is  inserted  in  a  mortgage,  confer- 
ring a  power  of  sale  upon  the  mortgagee,  or  a  third  person, 

'  Charter  c.  Stcvc-ns,  3  Dcnio,  33.  *  Otter  v.  Vaux,  39  Eng.  Law  &  Eq, 

^  (ir.)sv.iior  c.  Day,  1  Clark,  lO'J.         GU. 

*  Howard  v.  Amos',  3  Met.  308.  '"  Wickendcn   v.    Kayson,   39    Eng. 

Law  &  Ell.  92. 


CH    VII.]  POWER   OF   SALE.  145 

it  is  not  requisite  for  the  validity  of  the  deed,  that  the  mort- 
gagee or  third  person  should  join  in  the  execution,  or  sign  or 
acknowledge  the  same,  or  signify  his  willingness  to  make 
the  sale  or  undertake  the  execution  of  the  power,  by  any  for- 
mal writing  indorsed  on  the  deed.'  (A) 

1  Leffler  v.  Armstrong,  4  Iowa,  482. 


(h)  This  subject  has  in  some  of  the  States  been  regulated  by  statute.  In 
Massachusetts,  (Gen.  Sts.  716,)  where  a  mortgage  contains  a  power  of  sale, 
and  a  conditional  judgment  is  rendered,  the  demandant,  instead  of  a  writ 
of  possession,  may  have  a  decree  for  sale  under  the  power,  giving  such  no- 
tices as  are  required  by  the  deed  or  the  Court.  If  the  mortgagor  was  un- 
married when  the  deed  was  made,  or  his  wife  released  dower,  the  sale  bars 
dower.  A  transfer  by  the  mortgagor  does  not  affect  the  power.  And  the 
sale  bars  dower,  if  released  in  the  mortgage,  or  if  the  mortgage  was  f^iven 
before  marriage.  .  In  Mississippi,  the  mortgagee  cannot  sell  without  six 
months'  notice.  Miss.  St.  1840,  28,  29;  Hutch.  625.  In  Michigan,  where 
be  has  a  suit  pending.  Mich.  Rev.  Sts.  499.  In  the  same  State,  and  in 
New  York,  the  mortgagee  is  authorized  to  purchase  the  estate  himself,  if 
it  be  done  fairly.  Ibid.  2  N.  Y.  Rev.  Sts.  546,  St.  1842,  ch.  277,  §  8.  In 
Michigan,  later  statutes  provide,  that  every  mortgage  of  real  estate,  contain- 
ing a  power  of  sale,  upon  breach  of  condition,  may  be  foreclosed  by  advertise- 
ment as  follows :  — 

No  proceeding  shall  have  been  instituted  at  law,  to  recover  the  debt ;  or 
such  suit  must  have  been  discontinued,  or  an  execution  upon  the  judoment 
returned  unsatisfied  in  whole  or  in  part.  The  mortgage  and  all  assign- 
ments thereof  must  have  been  duly  recorded.  If  the  debt  is  payable  by  in- 
stalments, each  instalment  after  the  first  shall  be  deemed  a  separate  and 
independent  mortgage,  which  may  be  foreclosed,  as  if  the  sale  were  made 
upon  an  independent  prior  mortgage. 

Notice  that  such  mortgage  will  be  foreclosed  by  a  sale  of  the  mortgaged 
premises,  or  some  part  of  them,  shall  be  given,  by  publishing  the  same  for 
twelve  successive  weeks,  at  least  once  a  week,  in  a  newspaper  printed  in 
the  county  where  the  premises,  or  some  part  of  them,  are  situated,  if.  there 
be  one;  if  not,  then  in  a  paper  published  nearest  thereto. 

Every  such  notice  shall  specify:  1.  The  names  of  the  mortgagor,  mort- 
gagee, and  assignee  of  the  mortgage,  if  any  ;  2.  The  date  of  the  mortgage, 
and  .when  recorded  ;  3.  The  amount  claimed  to  be  due  thereon  at  the  date 
of  the  notice  ;  and,  4.  A  description  of  the  mortgaged  premises,  conforming 
substantially  with  that  contained  in  the  moi'tgage. 

The  sale  shall  be  at  public  vendue,  between  nine  o'clock  in  the  forenoon 

VOL.  I.  13 


146  THE   LAW    OF   MORTGAGES.  [CH.  VII. 

ami  sunset,  at  the  place  of  holdinfr  the  Circuit  Court  within  the  county  in 
which  the  premises,  or  some  part  of  them,  are  situated,  and  shall  be  made  by 
the  person  appointed  for  that  purpose  in  the  mortgage,  or  by  the  sheriff, 
under-sheriff,  or  a  deputy-sheriff  of  the  county. 

Such  sale  niav  be  postponed  from  time  to  time,  by  inserting  a  notice  of 
such  postponement,  as  soon  as  practicable,  in  the  newspaper  in  which  the 
ori"inal  advertisement  was  published,  and  continuing  such  publication  until 
the  time  to  which  the  sale  shall  be  postponed,  at  the  expense  of  the  party 
recjuesting  such  postponement. 

It'  the  mort<ran-ed  premises  consist  of  distinct  farms,  tracts,  or  lots,  they 
shall  be  sold  separately,  and  no  more  farms,  tracts,  or  lots  shall  be  sold  than 
shall  be  necessary  to  satisfy  the  amount  due,  at  the  date  of  the  notice  of  sale, 
with  interest,  costs,  and  expenses. 

The  mortgagee,  his  assigns,  or  his  or  their  legal  representatives,  may, 
fairly  and  in  good  faith,  purchase  the  premises  or  any  part  thereof 

The  person  making  the  sale  shall  forthwith  execute  and  deliver  a  deed, 
specifying  the  precise  consideration,  and  shall  indorse  thereon  the  time 
when  such  deed  will  become  operative,  in  case  the  premises  are  not  re- 
deemed, and  deposit  the  same  with  the  Register  of  Deeds.  Unless  the  prem- 
ises shall  be  redeemed  within  the  time  limited,  such  deed  shall  become  op- 
erative, and  may  be  recorded,  and  shall  vest  in  the  grantee  all  the  right 
•which  the  mortgagor  had  at  the  time  of  the  execution  of  the  mortgage,  or  at 
any  time  thereafter ;  not  affecting,  however,  any  prior  lien. 

If  the  mortgagor,  his  heirs,  &c.,  or  any  person  lawfully  claiming  from  or  ■ 
under  him  or  them,  shall  within  one  year  from  such  sale  redeem  the  premises 
sold,  or  any  distinct  lot  or  parcel  thereof  separately  sold,  by  paying  to  the  pur- 
chaser, his  executors,  administrators,  or  assigns,  or  to  the  Register  of  Deeds, 
for  the  bene6t  of  such  purchaser,  the  sum  bid,  with  interest  at  the  rate  of 
ten  per  cent,  per  annum  ;  such  deed  shall  be  void. 

Upon  payment  to  the  Register,  or  upon  delivering  to  him  a  certificate  of 
payment,  signed  and  acknowledged  by  the  person  entitled  to  receive  pay- 
ment, and  certified  by  some  officer  authorized  to  take  the  acknowledgment 
of  deeds;  such  Register  shall  destroy  the  deed,  and  shall  enter,  in  the  mar- 
gin of  the  record  of  such  mortgage,  a  memorandum  that  it  is  satisfied,  in 
whole  or  in  part,  as  the  case  may  be ;  under  penalty,  against  any  person 
entitled  to  receive  such  moneys,  who  shall  refuse  to  make  such  certificate, 
of  one  hundred  dollars  damages,  over  and  above  all  actual  damages. 

If,  after  ^■uch  sale,  there  remain  in  the  hands  of  the  person  making  the 
sale,  any  surplus  money,  after  satisfying  the  mortgage  and  the  costs  and  ex- 
[K•n^es,  tlie  si^rplus  shall  be  paid  over,  on  demand,  to  the  mortgagor,  his  rep- 
resentatives, or  a.ssigns. 

Any  l>arly,  desiring  to  perpetuate  the  evidence  of  such  sale,  may  pro- 
cure :  1.  An  ailidavit  of  the  publication  of  the  notice  of  sale,  and  of  any 
notice  of  postjioneuient,  to  be  made  by  the  printer  of  the  newspaper,  or  by 


CH.   VII.]  POWER    OP    SALE.  147 

some  person  in  bis  employ  knowing  tho  facts ;  and,  2.  An  affidavit  of  the 
sale  by  the  person  who  acted  as  auctioneer,  stating  the  time  and  place,  the 
sum  bid,  and  the  name  of  the  purchaser.  Which  affidavits  may  be  taken 
and  certified  by  any  officer  authorized  by  law  to  administer  oaths ;  and  shall 
be  recorded  at  length  by  the  Register  of  Deeds  ;  and  such  original  aflida- 
vits,  the  record  thereof,  and  certified  copies  of  such  record,  shall  be  pre- 
sumptive evidence  of  the  facts  therein  contained.  Comp.  Laws,  Michigan, 
1867,  p.  1363. 

In  New  York,  the  affidavit  of  sale,  without  deed,  will  perfect  the  title. 
The  power  must  be  registered  or  recorded,  and  the  sale  has  the  effect  of  a 
foreclosure,  as  to  the  mortgagor,  and  all  claimants  subsequent  to  the  mortga- 
gee. .Ub.  Sup.  The  statutes  of  Maine  and  Maryland  contain  similar  provis- 
ions. Maine,  St.  1838,  ch.  333.  In  Wisconsin,  the  power  to  lease  of  a  ten 
ant  for  life,  or  the  power  of  a  married  woman,  is  not  extinguished  or  sus- 
pended by  mortgage,  but  the  power  and  the  land  are  bound  thereby.  A 
power  of  sale  vests  in  an  assignee  of  the  mortgage.     Wis.  Rev.  Sts.  326. 

In  Iowa,  deeds  of  trust  of  real  or  personal  property  may  be  executed  as 
securities  for  the  performance  of  contracts,  and  sales  made  in  accordance 
with  their  terms  are  valid.  Or  they  may  be  treated  like  mortgages,  and  fore- 
closed by  action  in  the  District  Court.  No  deed  of  trust,  or  mortgage,  with 
power  of  sale  on  real  estate  made  after  the  first  day  of  April,  a.  d.  1861,  for 
the  security  of  the  payment  of  money,  shall  be  foreclosed  in  any  other  man- 
ner than  by  proceeding  in  the  District,  State,  or  Federal  Courts. 

Nothing  herein  contained  is  intended  to  prevent  parties  from  fixing 
their  own  terms  to  any  contract,  and  prescribing  the  manner  in  which 
those  contracts  shall  be  enforced  ;  nor  to  change  the  rule,  or  affect  the  rights 
of  the  vendor  of  real  estate,  in  those  cases  where  time  is  of  the  essence  of 
the  contract.     Rev.  Stat.  Iowa,  1860,  p.  653. 

In  the  State  of  New  York,  the  whole  subject  of  powers  has  been  precisely 
regulated  by  minute  statutory  provisions.  Many  of  these  relate  particularly 
to  the  power  of  sale  in  mortgages;  and  various  points  have  been  decided  by 
the  courts,  which  are  rather  of  local  than  general  application.  In  an  early 
case,  (Bergen  v.  Bennett,'  1  Gaines's  Cas.  in  Err.  1,)  a  mortgage  was  fore- 
closed under  a  power  of  sale,  and  after  sixteen  years'  acquiescence,  knowing 
the  sale,  the  mortgagor  was  denied  the  right  of  redeeming. 

A  power  of  attorney  to  execute  a  mortgage  authorizes  the  attorney  to 
insert  a  power  of  sale,  on  default  of  payment.     Wilson  i'.  Troup,  2  Cow.  195. 

This  does  not  change  the  nature  of  the  instrument,  or  increase  the  secur- 
ity beyond  what  is  implied  in  the  word  "  mortgage,"     Ibid. 

A  power  to  give  a  mortgage  means  the  instrument  commonly  used  as  such, 
in  the  place  where  the  power  is  to  be  executed.     Ibid. 

In  New  York,  mortgages  generally  contain  a  power  of  sale  or  summary 
foreclosure ;  and  a  power  by  a  citizen  of  Pennsylvania  to  execute  a  mort- 
gage in  New  York  implies  authority  to  insert  such  power.     Ibid. 


148  THE   LAW   OF   MORTGAGES.  [CH.    VII. 

The  provision  of  the  Revised  Laws,  (p.  374,)  that  before  execution  of  a 
convevaiK-e  under  a  power  of  sale,  such  power  shall  be  recorded,  is  for  the 
benefit  of  the  purchaser;  and  designed  to  protect  him  against  subsequent 
purL-hasers,  &c.  But  the  mortgagor  canuot  object  the  want  of  such  regis- 
tration.    Ibid. 

It  is  not  necessary  to  the  validity  of  a  mortgage  or  a  purchase  under  a 
power  of  sale  therein,  even  as  against  subsequent  purchasers,  &c.,  that  the 
power  to  execute  it  be  registered  according  to  the  statute.     1  R.  L.  273,  §  2. 

Ibid. 

If  a  mortgagee  convey  part  of  the  mortgaged  premises  with  warranty,  and 
afterwards  himself  purchase  the  whole  under  the  power  of  sale  ;  the  pur- 
chase will  enure  to  the  benefit  of  his  grantee.     Ibid. 

A  "eneral  assignment  divests  the  mortgagee's  interest  so  effectually,  that 
a  foreclosure  by  the  assignee  is  valid  as  against  the  mortgagee,  without  using 
his  name,  giving  him  notice,  or  in  any  way  recognizing  his  connection  with 
the  mortgage.     Ibid. 

A  sale  under  a  power,  pursuant  to  the  statute,  is  equivalent  between  the 
parties  to  it  to  sale  under  a  decree  of  chancery.  The  mortgagees  (1  R.  L. 
375,  §  10)  are  entitled  to  become  purchasers  at  such  sale,  and,  as  between 
them  and  the  mortgagor,  the  estate  passes  upon  such  purchase,  without  the 
execution  of  any  deed  of  conveyance.  Slee  v.  Manhattan,  &c.  1  Paige,  52  ; 
Bergen  v.  Bennett,  1  Gaines's  Cas.  in  Err.  1 ;  7  Johns.  Ch.  144  ;  10  Johns. 
185;  4  Cow.  266. 

Where  there  was  a  conveyance  in  trust,  with  a  power  of  sale,  and  at  the 
same  time  a  conveyance  to  the  same  grantee  of  other  land  in  trust  for  another 
cestui,  with  a  similar  power,  and  the  grantee  mortgaged  back  the  whole  to 
secure  the  unpaid  part  of  the  purchase-money  of  both  parcels  ;  the  mortgage 
was  held  valid.     Coutant  v.  Servoss,  3  Barb.  128. 

In  New  York,  a  power  of  sale  in  a  mortgage,  so  far  as  it  relates  to  the 
equity  of  redemption,  or  the  surplus  value  of  the  property  over  the  debt,  is 
a  power  in  trust;  and  any  collusive  agreement  by  the  mortgagee  with  a 
third  person,  to  execute  the  power  in  such  manner  as  to  deprive  the  owner 
of  the  equity  of  the  benefit  intended  for  him,  by  the  statute,  respecting  a 
notice  of  the  sale,  or  by  which  he  may  be  deprived  of  the  benefit  of  a  fair 
competition  at  the  sale,  is  a  fraud  upon  his  rights ;  and,  in  case  of  such  an 
agreement,  for  the  purpose  of  enabling  the  third  person  to  obtain  the  estate 
for  less  than  its  value,  and  to  defraud  the  owners  of  the  equity,  the  sale  will 
be  set  aside  upon  a  bill  filed  in  chancery.  Jencks  v.  Alexander,  11  Paige, 
619. 

A  power  of  sale,  is  a  power  coupled  with  an  interest,  and,  it  seems,  a 
power  aji]icu(laut.  It  passes  with  an  assignment  of  the  mortgage,  but  not  by 
a  conveyance  of  part  of  the  estate.     Ibid. 

Under  the  Revised  Statutes,  as  amended  in  1844,  there  are  three  things 
Decv«iiary  to  a  valid  sale  under  a  power.     The  notice  of  sale  must  be  pub- 


CH.  VII.]  POWER   OF   SALE.  149 

lislied  Cor  a  specified  time  in  a  specified  ncAvspaper;  a  copy  of  such  notice 
must  be  affixed  in  a  specified  place  a  certain  period  before  the  time  of  sale; 
anda  copy  must  be  served  on  the  mortgagor  or  his  personal  representatives, 
&c.,  at  least  fourteen  days  before  the  time  of  sale.  Harris,  J.,  Kino^  i'. 
Duntz,  11  Barb.  191. 

Where  a  mortgage  is  executed  by  a  husband  and  wife,  and  the  wife  sur- 
vives the  husband,  she  is  entitled  to  notice  of  sale  ;  otherwise  she  is  not 
barred  ;  and  the  heirs  of  the  husband  may  take  the  objection.     Ibid. 

In  case  of  the  death  of  the  mortgagor,  notice  need  not  be  served  upon  his 
heirs.     lb. 


13* 


150  THE   LAW    OP   MORTGAGES.  [CH.  VIII. 


CHAPTER  VIII. 

NATURE   OF   THE   TITLE   AND    ESTATE    OF   THE   MORTGAGOR. 

1.  TIic  mortpragor  remains  the  real        15.  Mortgagor  may  maintain  a  real 
otniiy,  till  brcacli  of  condition,  entry  of    action,  as  owner. 


the  inortj;agfe,  or  foreclosure. 

2.  Hiniiirks  of  judges  and  elementa- 
ry writers  u|)on  this  subject. 
'  5.   Qualifications  of  the  general  rule ; 
how  far  the  mortgagee  may  be  called 
owiicr. 

6.  A  mortgage  is  not  an  alienation 
of  the  land,  or  revocation  of  a  devise. 


16.  And  gains  a  settlement,  and  other 
civil  privileges. 

17.  Ilis  possession  is  not  adverse. 

18.  The  mortgagee,  in  general,  has 
the  riglit  of  immediate  possession. 

20.  When  he  has  not  this  right ; 
agreement  for  the  possession  of  the 
mortgagor,  liow  proved  ;  when  impli- 
ed ;  mortgages  for  support,  &c. 


1.  It  has  been  stated,  (ch.  1)  that,  after  breach  of  the  condi- 
tion of  a  mortgage,  the  mortgagor  ceases,  at  law,  to  have  any 
interest  in  the  estate,  his  only  remaining  title  being  that  which 
is  recognized  in  a  court  of  equity  alone,  and  therefore  styled 
an  equity  of  redemption,  (a)     In  the  language  of  a  recent  case, 


(a)  Cbilds  V.  Childs,  10  Ohio  St.  342.  Blackstone  says :  —  "  The  pay- 
ment of  principal,  interest,  and  costs  ought,  at  any  time,  before  judgment 
executed,  to  have  saved  the  forfeiture  in  a  court  of  law,  as  well  as  in  a  court 
of  equity.  And  the  inconvenience,  as  well  as  injustice,  of  putting  different 
constructions  in  different  courts  upon  one  and  the  same  transaction,  obliged 
the  parliament  at  length  to  interfere,  and  to  direct  by  the  statutes  4  &  5 
Anne,  ch.  16,  and  7  Geo.  2,  ch.  20,  that,  in  the  cases  of  bonds  and  mortgages, 
•what  had  long  been  the  practice  of  the  courts  of  equity,  should  also  for  the 
future  be  followed  in  the  courts  of  law."  3  Bl.  Comm.  435.  It  is  said, 
(King  i;.  Edington,  1  E.  288,)  though  after  breach  of  condition  the  estate  of 
the  mortgagf^-e  became  absolute  at  law,  "  neither  courts  of  law  nor  equity  lost 
eight  of  what  the  parties  intended."  It  has  been  held,  that  a  mortgage,  in 
South  Carolina,  does  not  convey  the  legal  title,  and  the  fee  remains  in  the 
mortgagor,  even  after  condition  broken.  Thayer  v.  Cramer,  1  McC.  Ch.  395. 
But  see  Stoney  v.  Shultz,  1  Hill,  Ch.  464.  See  also  Evertson  v.  Sutton,  5 
Wend.  295.  The  marked  change  in  the  law  upon  this  subject  is  significantly 
shown  by  the  remark  of  Comyns,  that,  "  till  redemption,  the  estate  is  in  the 
mortgagee,  by  law  and  equitj."     Com.  Dig.  Chancery,  4  A.  1. 


CH.    VIII.]  ESTATE    OF    THE    MORTGAGOR.  151 

even  before  breach  of  condition,  "  the  mortgage  is  a  con- 
veyance. It  is,  as  between  the  parties,  the  present  convey- 
ance of  a  fee,  defeasible  upon  the  payment  of  money  or  the 
performance  of  some  other  condition."^  And,  more  espe- 
cially, "  after  the  law  day  is  passed,  the  mortgagee  is  to  be 
regarded  as  the  owner.^  "  It  now  becomes  necessary,  how- 
ever, to  remark  further  upon  this  subject,  that  only  as  be- 
tween the  parties  to  the  transaction  do  these  results  follow 
from  a  breach  of  the  condition  of  a  mortgage.  It  is  the  well- 
settled  modern  doctrine,  that,  except  so  far  as  the  relative 
rights  and  duties  of  mortgagor  and  mortgagee  between  them- 
selves are  concerned,  or  in  reference  to  all  strangers  or  third 
persons,  who  may  be  connected  with  or  interested  in  the 
mortgaged  estate ;  until  the  mortgagee  enters  for  breach  of 
condition,  {b)  and  in  many  respects  until  final  foreclosure  of 

1   Per    Shaw,    C.    J.,    Richards    v.        2  pgr  Redfield,    Ch.  J.,  Wright   v. 
Chace,  2  Gray,  885.     Ace.  Kimball  v.     Lake,  30  Verm.  207. 
Lockwood,  6   R.  I.  139 ;  Goodman  v. 
White,  26  Conn.  322. 


(&)  In  a  late  case  it  is  held  that  the  mortgagor  remains  the  real  owner, 
till  the  proceedings  for  foreclosure  are  finally  closed  ;  that  the  title  passes  to 
the  mortgagee  only  by  the  recording  of  the  affidavits  of  sale.  Bryan  v.  Butts, 
27  Barb.  505;  ace.  Elfe  v.  Cole,  26  Geo.  197;  Wood  v.  Trask,  7  Wis.  566. 
The  mortgagor  is  owner,  before  foreclosure  or  entry  by  the  mortgao-ee. 
Perkins  v.  Dibble,  10  Ohio,  438;  Miami,  &c.  v.  Bank,  &c.,  Wright,  249; 
Kalston  v.  Huglies,  13  111.  469.  See  Norwich  v.  Hubbard,  22  Conn.  587. 
In  New  Hampshire  it  has  been  said,  that  the  mortgagee  might  be  entitled  to 
notice  of  the  laying  out  of  a  highway,  and  damages,  as  owner,  by  formal 
entry  and  notice  of  his  title ;  and  in  any  event  might  have  his  rights  pro- 
tected in  Chancery.  Parish  v.  Gilmanton,  11  N.  H.  298.  See  Mass.  Sts. 
1855,  ch.  247  ;  Christophers  v.  Sparke,  2  Jac.  &  W.  235.  The  charter  of 
a  city  provided,  that  the  common  council  might  order  the  proprietor  or  pro- 
prietors of  land  and  buildings  fronting  sidewalks  or  gutters,  to  level,  raise, 
or  form  them  at  their  own  expense,  prescribing  a  reasonable  time  therefor ; 
and,  if  they  failed  to  do  it,  might  themselves  procure  it  to  be  done,  and  the 
expense  thereof  should  then  be  a  lien  or  real  incumbrance  on  the  property, 
and  paytnent  enforced,  as  tipon  a  mortgage  to  the  city.  The  council  ordered 
certain  works  of  this  nature  to  be  done,  opposite  premises  which  were  mort- 


152  THE    LAW   OF   MORTGAGES.  [CH.    VIII. 

the  mortgage,  the  mortgagor  remains  owner  of  the  estate  and 
seised  of  it,  while  the  mortgagee  is  held  to  have  a  mere  lien 
or  security.     In  terms,  "  a  conveyance  of  land  in  mortgage 


gaged,  notifving  the  mortgagor,  but  not  the  mortgagee.  Upon  failure  to  do 
the  work,  the  council  caused  it  to  be  done,  and  the  expense  was  ordered  to 
be  paid  by  the  mortgagor.  Upon  his  neglect  or  refusal  to  pay  it,  the  city 
flies  a  bill  in  equity  against  mortgagor  and  mortgagee  to  enforce  the  lien. 
Held,  the  latter  was  liable  to  be  foreclosed.  Norwich  v.  Hubbard,  22  Conn. 
587.  Tlie  mortgagee  of  land  taken  for  a  railroad  need  not  be  made  a  party 
to  proceedings  by  the  mortgagor  for  the  assessment  of  damages,  provided  he 
gives  his  assent  thereto  by  a  writing  filed  in  the  case.  Meacbam  6.  Fitch- 
burg,  &e.  4  Cush.  291. 

In  addition  to  the  two  successive  stages  of  title  which  grow  out  of  a  mort- 
narre,  arising  from  breach  of  condition  and  entry  by  the  morlyayee  ;  there  is, 
preliminary  to  either,  the  interest  of  the  mortgagor,  created  by  the  mere 
making  of  the  mortgage,  prior  to  condition  broken.  This  of  course  would 
seem  to  be  a  higher  and  more  substantial  title  than  either  of  the  others ; 
constituting,  at  law,  what  they  constitute  in  equity.  But,  upon  mere  tech- 
nical principles,  relating  to  conditions,  a  different  doctrine  has  been  some- 
times propounded ;  although,  in  the  present  advanced  state  of  the  law  of 
mortgages,  it  would  not  probably  be  now  sanctioned  by  any  court  of  law  or 
equity.  In  Lord  ]\Iountjoy's  case,  Anders.  307;  ace.  Moore  w.  Plymouth, 
3  B.  &  A.  66,  it  was  held,  that  a  mortgagor  cannot  effectually  make  a  i-eser- 
vation  to  himself,  from  a  conveyance  to  a  purchaser,  of  any  privilege  from 
the  land,  as,  for  instance,  that  of  mining  or  hunting;  because  he  is  not  the 
legal  owner.  So  it  is  said :  —  "A  mortgagor,  before  condition  broken,  has 
not  any  equity  of  redemption — nor  —  any  estate,  as  distinguished  from  a 
mere  tenancy,  either  at  law  or  in  equity  ;  clearly  not  at  law,  for  by  the 
mortgage  deed  he  has  conveyed  away  all  his  estate,  &c.,  both  at  law  and  in 
equity  to  the  mortgagee  ;  on  a  condition,  it  is  true,  but  that  a  condition,  the 
performance  or  breach  of  which  a  court  of  equity  cannot  notice,  except 
as  it  leads  to  consequences  injurious  to  one  or  both  of  the  parties ;  nor  in 
ecpiity,  for  a  court  of  equity  does  not  interfere  till  after  the  breach  of  the 
condition."  1  Pow.  268,  n.  The  same  author  remarks,  that,  if  a  mortgagor 
before  the  condition  broken  devise  it,  the  devise  will  be  void  ;  for  a  condi- 
tion is  not  devisable.  But  that  the  cases  of  Moor  &  al.  v.  Hawkins,  and  Row 
I'.  Jones,  which  seem  to  have  on  solid  grounds  established  the  power  of  testa- 
mentary di-<positions  of  possibilities,  accompanied  with  an  interest,  and  of 
huch  as  would  be  descendible  to  the  heir  of  the  object  of  them,  dying  before 
Ihe  contingent  event  —  appear  to  be  equally  applicable  in  principle  to  the 
case  of  a  condition  ui)on  a  mortgage.     1  Pow.  268. 


CH.  VIII.]  ESTATE    OF   THE   MORTGAGOR.  153 

is  a  conveyance  by  deed  defeasible  on  a  condition  subse- 
quent" ;  ^  enabling  the  mortgagor  to  regain  a  title  which  has 
once  pasi>ed  from  him,  by  doing  a  certain  act;  but  in  effect 
the  condition  is  precedent,  [c)  enabling  the  mortgagee  to 
turn  into  a  legal  title  that  which  was  before  a  mere  claim  or 
lien,  upon  the  mortgagor's  failure  to  do  a  certain  act.-  In 
a  late  case  it  is  said,  "  It  conveys  no  title  to  the  property."  ^ 

2.  These  general  principles  have  been  sanctioned  in  nu- 
merous American  and  English  cases.  Thus,  property  in 
lease  being  mortgaged,  and  the  mortgagor  becoming  bank- 
rupt, the  mortgagee  notified  the  tenant  to  pay  rent  to  him, 
but  it  was  paid  to  the  assignees.  The  mortgagee  then  filed  a 
petition,  that  the  assignees  might  be  ordered  to  pay  him  the. 
rent  received.  In  dismissing  the  petition.  Lord  Eldon  re- 
marked, that  admitting  the  case  of  Moss  v.  Gallimore  to  be 
sound  law,  he  had  often  been  surprised  by  the  statement, 
that  the  mortgagor  was  receiving  the  rents  for  the  mortgagee. 
A  mortgagee  never  could  in  that  court  make  the  mortgagor 
account  for  the  rent  for  the  time  past.  There  was  no  instance 
that  a  mortgagee  per  directum  had  called  on  the  mortgagor 
to  account  for  the  rents.  The  consequence  is,  that  the  mort- 
gagor does  not  receive  the  rent  for  the   mortgagee.^  [d)      So 

1  Per  Hoar,  J.,  3  Allen,  339,  340.  12  Verm.  695;  Hall  v.  Savill,  8  Iowa, 

2  See   Att.    Gen.    v.   Winstanley,    5     37  ;  ])er  Dewej',  J.,  Jenkins  v.  Quincy, 
Bligh,  (New,)  141 ;  Wliite  v.  Whitney,     &c.  7  Gray,  373. 

3  Met.  84  ;  Goodwin  v.  Richardson,  11         **  Per  Johnson,  J.     Bryan  v.  Butts, 

Mass.  474,  475  ;  8  Ibid.  554,  Reading  of    27  Barb.  505. 

Judge  Trowbridge  ;  Hooper  v.  Wilson,        *  Ex  parte  Wilson,  2  Ves.  &  B.  252. 


(c)  In  equity,  a  deed  containing  a  condition,  that  the  title  shall  not  vest 
in  the  grantee  till  payment  of  the  price,  constitutes  a  mortgage.  Pugh  «_ 
Holt,  27  Miss.  461. 

(d)  A  lessor  mortgaged  the  property  leased,  and  afterwards  assigned  the 
future  rent  for  three  years.  The  mortgage  was  assigned  to  the  plaintiff,  who 
had  notice  of  the  former  assignment.  The  plaintiff  brought  a  bill  to  fore- 
close, and  a  receiver  was  appointed.  Held,  the  former  assignee  was  entitled 
to  the  rent  accruing  between  the  commencement  of  suit  and  the  appointment 
of  the  receiver,  though  the  mortgagor  was  insolvent  and  the  security  inade- 
quate.    Syracuse,  &c.  v.  Tallman,  31  Barb.  201. 


154  THE    LAW    OF   MORTGAGP]S.  fCH.   YIII. 

Lord  Hardwicke  says,  "  The  interest  of  the  land  must  be 
somewhere  and  cannot  be  in  abeyance,  but  it  is  not  in  the 
mortgagee,  and  therefore  must  remain  in  the  mortgagor."  ^ 
And  Sir  Thomas  Plumer,  M.  R.,  says,  "  The  relation  between 
mortc^ao-or  and  mortgagee  is  perfectly  anomalous  and  sui 
n-eneris.  The  latter  acquires  a  distinct  and  independent 
beneficial  interest  in  the  estate  ;  he  has  always  a  qualified 
and  limited  right,  and  may  eventually  acquire  an  absolute 
and  permanent  one  to  take  possession,  and  he  is  entitled 
to  enforce  his  right  by  an  adverse  suit  in  invilum  against 
the  mortgagor."  ^  So  Lord  Manners  remarks  :  —  "  The  per- 
son entitled  to  the  equity  of  redemption  is  in  equity  con- 
sidered as  the  oiL'ner  of  the  estate  ;  it  descends  to  his  heir, 
may  be  the  subject  of  settlement  or  will,  may  be  limited  in 
the  same  manner,  and  those  limitations  barred  in  the  same 
manner  as  those  of  the  legal  estate  ;  the  mortgagee  being  but 
a  mere  incumbrancer."^  So  Lord  Mansfield  remarks,  in  the 
King  V.  St.  Michael's  :  ^  —  "  The  mortgagee,  notwithstanding 
the  form,  has  but  a  chattel,  and  the  mortgage  is  only  a  se- 
curity. It  is  an  affront  to  common  sense  to  say  the  mort- 
gagor is  not  the  real  owner."  "A  mortgagor  has  a  right  to 
the  possession,  till  the  mortgagee  brings  an  ejectment." 

3.  And  the  prevailing  language  of  the  American  courts  is 
to  the  same  effect.  Thus,  in  Massachusetts,  Shaw,  C.  J., 
says :  — "  The  first  great  object  of  a  mortgage  is,  in  the  form 
of  a  conveyance  in  fee,  to  give  to  the  mortgagee  an  effectual 
security,  by  the  pledge  or  hypothecation  of  real  estate,  for  the 
payment  of  a  debt,  or  the  performance  of  some  other  obliga- 
tion. The  next  is,  to  leave  to  the  mortgagor,  and  to  purchas- 
ers, creditors,  and  all  others  claiming  derivatively  through 
him,  the  full  and  entire  control,  disposition,  and  ownership 
of  the  estate,  subject  only  to  the  first  purpose,  that  of  secur- 
ing the  mortgagee.  Hence  it  is,  that  as  between  mortgagor 
and  mortgagee,  the  mortgage  is  to  be  regarded  as  a  convey- 

»  Cnshorno  v.  Scarfe,  1  Atk.  606.  "  2  Ball  &  B.  402. 

'■'  Clioliuondeky  v.  Clinton,  2  Jac.  &  *  1  Doug.  632. 

W.  l«;i. 


CHAP.  VIII.]  ESTATE    OF    THE    MORTGAGOR.  155 

ance  in  fee  ;  because  that  construction  best  secures  him  in 
his  remedy,  and  his  ultimate  right  to  the  estate,  and  to  its  in- 
cidents, the  rents  and  profits.  But  in  all  other  respects,  until 
foreclosure,  when  the  mortgagee  becomes  the  absolute  owner, 
the  mortgage  is  deemed  to  be  a  lien  or  charge,  subject  to 
which  the  estate  may  be  conveyed,  attached,  and  in  other 
respects  dealt  with,  as  the  estate  of  the  mortgagor.  And  all 
the  statutes  upon  the  subject  are  to  be  so  construed ;  and  all 
rules  of  law,  whether  administered  in  law  or  in  equity,  are  to 
be  so  applied,  as  to  carry  these  objects  into  effect."  ^  And  in 
another  case,  "although,  as  between  mortgagor  and  mort- 
gagee, it  is  a  transmission  of  the  fee  which  gives  the  mort- 
gagee a  remedy  in  the  form  of  a  real  action,  and  constitutes  a 
legal  seisin  ;  yet,  to  most  other  purposes,  a  mortgage  before 
the  entry  of  the  mortgagee  is  but  a  pledge  and  real  lien,  leav- 
ing the  mortgagor  to  most  purposes  the  owner."  ^  In  the 
same  State  it  is  said,  "  while  the  mortgagor,  or  any  persons 
under  him,  are  by  the  mortgagees  permitted  to  remain  in 
possession,  and  the  mortgagees  omit  to  enter,  the  mortgagor 
and  those  who  are  in  under  him  are,  in  contemplation  of 
law,  taking  the  rents  and  profits  to  his  and  their  own  ac- 
count."^ (e) 

4.  So,  in   New  York,   Chief  Justice    Kent  remarks:*  — 
"  Mortgages  have  been  principally  the  subject  of  equity  juris- 


1  Ewer  V.  Ilobbs,  5  Met.  3.  See  14  Pick.  531 ;  Clark  v.  Curtis,  1  Gratt. 
Miami,  &c.  I'.  Bank,  &c.  Wright,  249;  289.  See  Cadwallader  v.  Mason, 
Davis  y.  Anderson,  1  Kelly,  176.  Wythe,    58;    Graves   v.    Sayre,  5  B. 

2  Per  Shaw,  C.  J.,  Howard  v.  Rob-  Monr.  390 ;  Woodward  v.  Pickett,  8 
inson,  5  Cush.  123.  Gray, 617. 

2  Per  Putnam,  J.,  Mayo  v.  Fletcher,  *  Jackson  v.  Willard,  4  Johns.  42. 


(e)  In  ]\Iaine,  the  mortgagee  is  not  accountable  to  the  morfgagor  for  rents, 
before  taking  possession,  nor  the  mortgagor  to  the  mortgagee.  Chace  v. 
Palmer,  25  Maine,  341.  See  Davenport  v.  Bartlett,  9  Ala.  179.  So  the 
mortgagor  in  possession  may  make  any  improvements  upon  the  estate,  and 
the  mortgagee's  failing  to  object  will  not  affect  his  rights.  Heath  v.  Wil- 
liams, 25  Maine,  209. 


156  THE   LAW    OF   MORTGAGES.  [Cll.  VIII. 

diction.  (  f)  They  have  been  considered  in  those  courts  in  their 
true  nature  and  genuine  meaning;  and  the  rules  by  which 
they  are  governed  are  settled  upon  clear  and  consistent  prin- 
ciple?. The  case  is  far  different  in  a  court  of  law ;  and  we 
are  constantly  embarrassed  between  the  force  of  technical 
formalities,  and  the  real  sense  of  the  contract.  The  language, 
however,  of  the  modern  cases  is  tending  to  the  same  conclu- 
sions which  have  been  adopted  in  equity  ;  and,  whenever  the 
nature  of  the  case  would  possibly  admit  of  it,  the  courts  of 
law  have  inclined  to  look  upon  a  mortgage,  not  as  an  estate 
in  fee,  but  as  a  mere  security  for  a  debt." 

5.  Such  may  be  laid  down  as  the  existing,  settled  rule  of 
law  upon  this  subject.  It  should  be  stated,  however,  that  a 
dillerent  language  is  not  unfrequently  held  in  the  books, 
with  respect  to  the  title  of  mortgaged  premises;  speaking  of 
the  mortgagee  as  the  true  owner,  more  especially  where  he 
is  in  possession,^  and  of  the  mortgagor,  as  having  a  mere 
equity.  It  is  truly  said,  "  Unless  the  different  purposes  to 
be  answered  are  adverted  to,  there  would  appear  to  be  much 
confusion  in  the  books  relative  to  the  rights  of  the  mortga- 
gor and  mortgagee  ;  and,  with  those  purposes  in  view,  an 
attempt  to  reconcile  all  the  decisions  would  be  made  in 
vain."  2  And  Judge  Story  remarks,  that  the  various  language 
used  upon  this  subject  is  to  be  accounted  for  by  the  different 
views  which  prevail  in  law  and  equity .^  [g)     Thus,  in  an- 


1  Lowell  V.  Sliaw,  3  Sliepl.  342.    As  2  p^^  Parker,  C.  J.,  Smith  v.  Moore, 

to  the  lialiiiity  oftlie  mortgagee  in  pos-  11  N.  H.  59. 

session  lor  taxes,  see  Mass.  Gen.  Sts.  ^  Gray  v.  Jenks,  3  Mass.  521. 
85. 


(/)  Courts  of  law  are  said  to  be  mole-hlind  as  to  equities.  Peters  v.  Good- 
rich, 3  Conn.  155. 

{'j)  ^J'*-  I'owell  says  :  —  "  The  mortgajree  is  to  be  considered,  both  at  law 
and  in  ••((iiity,  as  the  true  owner  as  to  all  other  persons  than  the  mortgagor, 
or  persons  who  can  show  a  title  to  compel  a  redemption.  And  as  to  those 
pcnions,  the  mortgagee  is  to  be  considered  as  an  indifferent  stakehohler,  the 
mortgage  not  vesting  any  actual  ownership  in  him,  and  the  estate  being  in 


CH.  VIII.]  ESTATE   OF   THE   MORTGAGOR.  167 

other  case  in  Massachusetts,'  it  is  said,  "  the  mortgao^ee  has 
the  whole  estate  against  all  but  the  mortgagor,"  while,  as 
has  been  seen,  the  general  language  of  the  cases  is,  that  tlie 
mortgagor  "  has  the  whole  estate  against  all  but  "  the  mort- 
gagee. Also,  that,  "  as  between  mortgagor  and  mortgagee, 
the  execution  and  delivery  of  the  mortgage  deed  transfer  the 
legal  estate  and  vest  it  in  the  mortgagee ;  and  the  interest  of 
the  mortgagor  is  a  right  to  redeem."  ^  And  that  "a  mort- 
gage is  an  executed  contract ;  a  present  transfer  of  title, 
although  conditional  and  defeasible."  ^  [h)  So  it  is  said 
by  the  Court  in  New  Hampshire,  that  the  mortgagor  retains 
only  a  power  to  regain  the  fee^  and  that  the  condition  as  to 
him  (not  the  mortgagee)  is  a  precedent  one,  he  being  a  mere 
tenant  at  sufi'erance,  and  having  no  right  of  possession.*  (z) 

1  Fay  V.  Brewer,  3  Pick.  204.  *  Brown  v.  Cram,  1  N.  H.  171.    See 

2  Root  V.  Bancroft,  10  Met.  471.  also  Haven  v.  Low,  2  N.  H.  16  ;  Trus- 
^  Per  Shaw,  C.  J.,  Barnard  v.  Ea-     tees,  &c.   v.   Dickson,   1   freem.    Ch. 

ton,  2  Cush.  303.  474. 


his  hands  as  a  mere  pledge."  1  Pow.  107,  n.,  3  Swan.  237.  So  Mr.  Coven- 
try says,  1  Pow.  177,  n.,  "  the  whole  legal  estate  is  in  the  mortgagee." 

Qi)  In  the  same  State,  if  the  seller  of  land  take  back  a  mortgage  for  the 
price,  which  he  forecloses,  he  is  to  be  regarded  as  the  continuous  owner,  in 
reference  to  a  dedication  of  the  land  as  a  highway.  Wright  v.  Tukey,  3 
Cush.  290.  Where  land  is  devised  subject  to  the  payment  of  an  annuity, 
and  mortgaged  by  the  devisee,  the  mortgagee  becomes  personally  liable  for 
the  annuity,  after  entering  to  foreclose,  and  his  liability  continues  even  after 
he  has  sold  the  land.  Fetch  v.  Taylor,  13  Pick.  133.  A  mortgage  deed 
will  pass  the  title  to  a  lot  included  in  the  description,  although  the  mortga- 
gor himself  holds  such  lot  by  virtue  of  a  previous  mortgage  made  to  him. 
And  if  the  place  referred  to  manifestly  includes  this  lot,  by  the  numbers  of 
the  lots,  it  will  pass  with  the  rest,  though  a  part  of  the  description  bounds  the 
land  conveyed  by  land  of  the  former  mortgagor.  Murdock  v.  Chapman, 
8  Gray,  156. 

(i)  In  the  case  of  Brown  v.  Cram,  1  N.  H.  169,  the  plaintiff  claimed  under 
a  mortgage,  and  the  defendant  under  a  subsequent,  absolute  deed,  from  the 
same  person  ;  and  issue  was  joined  upon  the  question  of  freehold  title.  The 
plaintiff  was  proved  to  have  made  a  formal  entry,  and  subsequently,  to  have 
had  continued  possession.  The  entry  was  made  before  one  ol  the  notes  secured 
by  the  mortgage  became  due,  and  after  the  other  became  due.     Held,  the 

VOL    I.  14 


158  THE   LAW   OF   MORTGAGES.  [CH.    VIII. 

Also,  that  a  mortgagee  not  in  possession  is  not  entitled  tp  be 
treated  as  owner,  except  in  a  suit  or  some  other  proceeding 
to  enforce  his  rights  as  mortgagee.^  So  in  Connecticut  it  is 
held,  that  the  legal  title  vests  in  the  mortgagee.^  And,  in 
New  Jersey ,3  the  mortgagee  is  said  to  be  seised  and  take  an 
estate  in  prcesenti.  The  condition  is  subsequent.  So,  in  Ohio, 
it  is  held  that  the  title  is  in  the  mortgagee  after  breach  of 
condition,  until  the  mortgage  be  satisfied.*  And  in  Mary- 
land it  is  said,  "  Upon  the  execution  of  the  mortgage,  the 
legal  estate  becomes  immediately  vested  in  the  mortgagee, 
and  the  right  of  possession  follows  as  a  consequence,  subject 
only  to  the  occupancy  of  the  mortgagor,  which  is  only  tacitly 
permitted  until  the  will  of  the  mortgagee  is  determined."^ 
So  in  New  York,  where  the  owner  of  an  equity  of  redemption 
conveys  it  with  warranty,  and  afterwards  takes  an  assignment 
of  the  mortgage  and  reassigns  it;  the  doctrine  of  estoppel 
by  warranty  is  held  to  apply,  and  the  mortgage  is  extin- 
guished.^ So,  in  Kentucky,  it  has  been  held  that  the  mort- 
gagor cannot  maintain  an  action  on  the  covenants  of  war- 
ranty in  the  deed  to  him,  while  the  mortgage  debt  remains 
unpaid  ;  the  mortgagee  being  the  legal  owner.'  So,  in  In- 
diana, the  words  "  mortgage,  assign,  and  transfer,"  in  a  deed, 
pass  the  legal  title.^ 

6.  Upon  the  ground  that  the  mortgagor  is  the  real  owner 
of  the  land,  a  mortgage  was  early  held  not  to  be  such  an 

1  Great  Falls  Co.  v.  Worcester,  15  ^  Jamieson  v.  Bruce,  6  Gill  &  J.  74. 

N.    H.    412.     See    Worster  v.   Great  ^  Mickles  v.    Townsend,  18  N.   Y. 

Falls,  &c  41  N.  11.16.  575. 

-  Cliamberlain    v.    Thompson,    10  '  McGoodwin  v.  Stephenson,  11  B. 

Conn.  251.  Monr.  21. 

**  Montgomery  v.  Bruere,  1  South.  ^  Gambril   v.   Doe,   8  Blackf.   140. 

268.  See  Speakman  v.  Speakman,  4  Ind. 

*  Heighway  v.  Pendleton,  15  Ohio,  420. 
735. 


freehold  title  was  in  the  plaintiff,  as  much  as  if  be  had  received  an  absolute, 
instead  of  a  conditional  deed  ;  the  mortgagor  retaining  merely  a  power  to 
re};aiii  the  fee  upon  performance  of  a  condition  precedent.  In  the  same 
case,  it  is  held,  that  the  purchaser  of  an  equity  of  redemption  has  no  title 
in  the  land  before  redemption.     Brown  v.  Cram,  1  N.  H.  172. 


CH.  VIII.]  ESTATE    OF   THE   MORTGAGOR.  159 

alienation  (J)  as  to  change  any  previous,  revocable  disposi- 
tion of  the  property ;  but  merely  to  prevent  the  owner  or  his 
alienee  from  recovering  it,  unless  they  discharged  the  demand 
thereby  secured.  Thus  an  owner  in  fee  settled  his  lands 
by  voluntary  conveyance  to  the  use  of  himself  for  life,  re- 
mainder to  his  daughter  and  heir  apparent  in  tail,  remainder 
to  his  three  brothers  in  tail,  remainder  to  himself  iif  fee,  with 
power  of  revocation.  Seven  years  afterwards,  he  mortgaged 
in  fee  to  one  of  the  three  brothers,  who  were  remainder-men, 
conditioned,  that,  if  he  or  his  heirs  paid  the  money  at  the  day, 
he  should  have  the  land  in  his  former  estate.  The  mortgage 
became  forfeited,  and  the  mortgagee  afterwards  purchased 
of  his  elder  brother,  the  heir  at  law.  The  third  brother  brings  a 
bill  for  the  third  part,  by  virtue  of  the  limitation  of  the  remain- 
der in  tail  to  him  and  his  two  brothers.  The  question  was, 
whether  the  mortgage  was  a  total  revocation,  or  only  pro 
tanto.  Held,  the  revocation  was  only  pro  tanto,  because  the 
mortgagor  was  to  have  the  lands,  on  payment,  as  in  his  for- 
mer estate.^ 

7.  The  same  principle  is  adopted  in  regard  to  a  devise, 
followed  by  a  mortgage,  of  the  land.  Thus  lands  were  de- 
vised in  tail  ma!e,  remainder  to  the  plaintiff  in  fee,  and  after- 
wards mortgaged  in  fee.  The  devisor  having  died,  and  the 
tenant  in  tail  having  also  died  without  issue,  the  plaintiff 
brought  a  bill,  claiming  under  the  devise  to  him.  Held, 
though  the  mortgage  was  a  total  revocation  of  the  will  at 
law,  it  was  not  so  in  equity,  but  the  devisee  might  redeem.^ 

8.  Upon  the  same  principle,  an  agreement,  made  upon  the 

1  Tliorne  v.  Thorne,  1  Vern.  141,  Casborne  v.  Scarfe,  1  Atk.  606  ;  Mc- 
182.  Taggart  y.  Thompson,  2  Harr.  (Penn.) 

2  Hall  V.  Dench,  1  Vern.  329.     See     149. 

(y)  On  the  other  hand,  no  alienation  by  the  mortgagor  can  affect  the 
mortgagee's  title,  or  constitute  a  fraud  upon  him.  As,  for  example,  a  sale 
of  the  equity  of  redemption,  and  an  assignment  of  the  rents  to  a  creditor  of 
the  mortgagor  till  foreclosure  and  sale,  and  a  subsequent  collection  of  the 
rents  by  such  creditor.  Dewey  v.  Latson,  6  Cal.  609  ;  Hodson  v.  Treat, 
7  Wis.  263. 


1,30  THE   LAW   OF   MORTGAGES.  [CH.    VIII. 

sale  of  land,  that  the  vendee  shall  not  sell  it  without  first 
offering  it  to  the  vendor,  does  not  preclude  the  vendee  from 
mortgaging  the  land  to  secure  a  debt,  without  making  such 
offer.  And  an  absolute  deed,  with  a  subsequent  defeasance, 
executed  in  conformity  with  an  agreement  made  at  the  time 
of  giving  the  deed,  constitutes  a  mortgage,  not  a  sale}  The 
Court  sa/,-  "  this  could  not  be  intended  to  restrain  the  de- 
fendant from  all  or  any  of  the  uses  of  his  property,  incident 
to  the  ownership,  except  on  an  offer  to  the  plaintiff  before  a 
sale  and  alienation.  It  could  not  prevent  him  from  mort- 
gaging it  to  raise  money.  This  being  a  security  for  money, 
and  not  a  sale  or  alienation  of  the  estate,  we  think  the  casus 
foederis  had  not  occurred." 

9.  So  a  conveyance  in  fee  by  the  mortgagor,  with  warran- 
ty, or  a  failure  to  apply  the  purchase-money  to  the  mortgage, 
does  not  give  the  right  of  immediate  foreclosure,  where  by 
the  terms  of  the  mortgage  the  debt  is  not  due.^ 

10.  So,  where  there  is  a  mere  power  to  sell  lands,  a  power 
to  mortgage  will  not  be  implied ;  ^  and  it  is  doubted  whether 
a  trustee,  appointed  by  will,  with  power  to  sell  and  dispose 
of  lands  in  fee-simple  or  otherwise,  may  mortgage  them.^ 

11.  So  the  act  of  Congress  of  1820,  ch.  52,  §  7,  providing 
that  "  no  land  shall  be  purchased  on  account  of  the  United 
States,  except  under  a  law  authorizing  such  purchase,"  does 
not  prohibit  the  acquisition,  by  the  United  States,  of  the 
legal  title  to  land,  taken  by  way  of  security  for  a  debt,  either 
directly  or  through  the  intervention  of  a  trustee.*' 

12.  So  a  mortgage  of  property  insured  is  not  an  alienation 
by  sale  or  otherwise,  within  the  meaning  of  a  statute  relat- 
ing to  mutual  insurance  companies,'^  (k)  or  of  a  prohibitory 

1  Lovering  v.  Fogg,  18  Pick.  540.  Denio,  254 ;  Jackson  v.  Massaclmsetts, 

-  Il.id.  I).  543.  &c.,  23  Pick.  418  ;  Rice   v.  Tower,  1 

»  Cortiiig  c.  Taylor,  16  111.  457.  Gray,  426  ;  Howard,  &c.  v.  Bruner,  23 

*  Allinny,  &c.  v.  Bay,  4  Comst.  9.  Penn.  50;    Dutton   u.   New  Enjiland, 

''  Ibiii.  &c.,  9  Post.  153;  Polsora   v.  Belknap, 

•^  NeiUon  v.  Lagow,  12  How.  U.  S.  &c.,  10  Post.  231  ;  I'ollard  i'.  Somerset, 

98.  &,c.,  42  Maine,  221. 

^  Conover  v.  The   Mutual,   &c.,  3 

(A)  But,  thou;:li  jiayable  to  the  mortgagee,  under  a  clause  providing  that 
the  policy  shall  Le  void,  if  the  estate  is  in  atiy  way  alienated,  voluntary  in- 


CH.  VIII.]  ESTATE    OF   THE   MOHTGAGOR.  161 

clause  in  the  policy,  more  especially  in  the  absence  of  any 
fraud.  Even  though  the  mortgage  be  given  on  the  same 
day.  So,  in  case  of  insurance  upon  property  mortgaged,  the 
company  agreeing  by  a  memorandum  upon  the  policy  to  pay 
the  amount  insured  to  the  mortgagee  with  the  consent  of  the 
mortgagor  ;  the  mortgage  was  afterwards  foreclosed,  without 
any  act  of  the  mortgagor,  to  whom  the  policy  was  issued. 
Held,  the  foreclosure  was  not  an  alienation  which  defeated 
the  policy,  and  that  an  action  might  be  brought  upon  it  in 
the  mortgagor's  name.^  (/)  But  where  one  statute  provided, 
that  a  deed  and  a  defeasance  of  the  same  date  and  executed 
at  the  same  time  should  constitute  a  mortgage  ;  and  another 
act  provided,  that  an  absolute  deed  should  not  be  defeated 
by  a  defeasance,  unless  recorded  :  it  was  held,  that  the  omis- 
sion to  record  a  defeasance  made  the  deed  an  alienation, 
which  avoided  a  policy  of  insurance.^ 

13.  The  same  general  rule  has  received  frequent  applica- 
tions, in  determining  what  parties  are  entitled  to  notice  of 
special  proceedings,  to  the  validity  of  which  notice  is  by  law 
made  necessary.  Thus,  where  a  statute  provided,  that  notice 
of  a  sale  to  enforce  a  mechanic's  lien  should  be  given  to  the 
owner  of  the  land;  it  was  held,  that  a  mortgagee,  whose  title 
accrued  after  that  of  the  mechanic,  was  not  entitled  to  such 

1  Bragg  V.  N.  E.  &c.,  5  Post.  289. 

2  Tomlinson  v.  Monmouth,  &c.,  47  Maine,  232. 

solvency  proceedings  of  the  mortgagor  avoid  the  insurance.  Young  v. 
Eagle,  &c.,  14  Gray,  150. 

A  mortgage  of  personal  property,  without  a  transfer  of  possession,  is  not 
such  an  alienation  as  will  avoid  a  policy  of  insurance  thereon.  Rice  v. 
Tower,  1  Gray,  426. 

(/)  But  a  mortgagee  is  a  purchaser,  to  the  extent  of  his  interest  in  the 
land,  within  the  Statute  of  Frauds,  (Ledyard  v.  Butler,  9  Paige,  132,)  or  the 
recording  acts,  (Porter  v.  Green,  4  Iowa,  571,)  more  especially  if  the  con- 
sideration is  a  preexisting  debt,  (Work  v.  Brayton,  5  Ind.  596,)  or  with 
reference  to  secret  trusts,  unless  there  be  a  distinct  notice.  Notice  to  a 
purchaser  at  a  foreclosure  sale  is  insufficient.  Martin  v.  Jackson,  27  Penn. 
504.  "  A  mortgage  is  pro  tanto  a  purchase,"  per  Appleton,  J.  Pierce  v. 
Faunce,  47  Maine,  514.  La  Farge,  &c.  v.  Bell,  22  Barb.  54. 
14* 


162  THE   LAW   OF   MORTGAGES.  [cn.  VIII. 

notice.^  But  to  a  bill  brought  for  the  purpose  of  charging 
an  estate  with  debts,  and  compelling  a  conveyance  of  it, 
mortgagees  are  necessary  parties.^ 

14.  Upon  similar  grounds,  a  right  of  way,  appurtenant  to 
land,  over  and  upon  adjoining  land,  is  not  extinguished  by 
the  vesting  of  both  estates  in  the  same  person,  as  mortgagee, 
under  separate  mortgages,  till  both  are  foreclosed.^  To  effect 
such  extinguishment,  it  is  held,  that  the  party  must  have  a 
permanent  and  enduring  title  to  both  estates,  an  unlimited 
power  of  disposal,  with  or  without  the  former  incidents  of 
servitude,  or  with  new  incidents  of  the  same  kind ;  an  estate 
not  liable  to  be  defeated  by  performance  of  a  condition  or 
an  event  beyond  his  control,  and  where  the  estates  cannot 
again  be  disjoined  by  operation  of  law.  "  So  long  as  she 
(the  mortgagee)  held  them,  they  were  both  defeasible,  upon 
different  conditions,  —  the  payment  of  distinct  debts,  and, 
for  aught  that  appears,  to  be  performed  by  different  persons, 
because  the  respective  equities  of  redemption  might  be 
held  by  different  persons.  So  long  as  she  held  them,  one 
might  have  been  redeemed  and  the  other  foreclosed  without 
any  act  of  hers,  and  a  foreclosure  or  redemption  of  either 
would  have  entirely  effected  a  separation  of  the  two."  The 
Court  further  remark,  that  a  redemption  reinstates  the  mort- 
gagor in  his  original  estate,  subject  to  all  its  former  servi- 
tudes. So  in  case  of  foreclosure,  the  incidents  of  the  estate 
remain  attached  to  it,  unaffected  by  any  act  of  the  mortga- 
gor, as  if  the  conveyance  had  been  originally  absolute,  and, 
until  foreclosure,  the  mere  entry  of  the  mortgagee  upon  both 
mortgages  will  not  effect  a  merger."* 

15.  Upon  the  ground  that  a  mortgage  constitutes  a  title 
when  the  mortgagee  comes  into  a  court  to  enforce  it,  but, 
till  then,  the  mortgagor  is  the  owner,'^  the  rule,  that  a  plaintiff 
in  ejectment  cannot  recover  premises,  the  title  to  which  is  in 

>  Howard  .•.  Robinson,  5  Cush.  119.  son  v.  Daniels,  11  N.  H.  274;  1  Pow. 

Iloxif  V.  Carr,  1  Sunin.  173.  166  a,  n. ;  Doe  v.   McLoskey,   2  Ala. 

»  HitniT  r.  Parker,  8  Cush.  145.  708;  Olmsted  v.  Elder,  1   Seld.  144; 

;  I''"'-  H'J-147.  Fontaine  v.  Beers,  19  Ala.  722. 
*  Dun  V.  Dmion,  5  llulst.  107  ;  EUi- 


CH.  VIII.]  ESTATE   OF   THE   MORTGAGOR.  163 

a  third  person,  does  not  apply,  where  the  outstanding  title  is 
a  mortgage,  (ni)  And  a  mortgagor  may  maintain  ejectment 
against  one  who  claims  by  a  conveyance  in  fee-simple  abso- 
lute, from  the  mortgagee.  So  a  mortgagor  or  purchaser  of 
the  equity  of  redemption  may  maintain  trespass  against  the 
mortgagee  or  one  acting  under  his  license,  where  the  defend- 
ant pleads  liberum  tenementum,  and  the  plaintiff  replies  that 
the  freehold  was  in  himself.^  («) 

1  Jackson  v.  Bronson,  19  Johns.  325;  Eunyan  v.  Mersereau,  11  Johns.  534  ; 
Huckins  v.  Straw,  34  Mahie,  166. 

(m)  It  is  held  that  the  mortgagor's  right  of  action  continues  till  foreclosure. 
So  that  of  all  claiming  under  him.  Brown  v.  Snell,  6  Florida,  741.  After 
performance  of  the  condition,  the  mortgagor  cannot  maintain  an  action  for 
the  land  against  a  third  person,  in  the  name  of  the  mortgagee,  though  the 
parties  agi-eed  by  parol  that  such  suit  might  be  brought.  Prescott  v.  Elling- 
wood,  10  Shepl.  345.  In  Missouri,  where  the  legal  title  is  in  the  mortgagee, 
an  outstanding  mortgage  is  sufficient  to  prevent  a  recovery  in  ejectment, 
and  there  is  no  presumption  of  redemption  after  a  lapse  of  time.  Meyer  v. 
Campbell,  12  Mis.  603.  If  in  trespass  the  defendant  plead,  that  he  was  pos- 
sessed of  an  undivided  moiety  of  certain  land,  which  was  flowed  by  the 
plaintiff's  dam,  and  that  therefore  he  entered  and  took  it  down  ;  a  replica- 
tion, that  the  plaintiffs  were  seised  of  the  whole  tract  in  fee  and  in  mortgage, 
and  had  the  right  of  possession,  and  therefore,  by  means  of  the  dam,  caused 
the  water  to  overflow  it,  is  insufficient,  though  it  might  be  otherwise  if  the 
replication  had  alleged,  that  the  plaintiffs  had  before  that  time  entered  into 
possession  as  mortgagees.  Great,  &c.  v.  Worster,  15  N.  H.  412.  Where  a 
defendant,  in  an  action  of  trespass  for  cutting  down  a  dam,  alleged  in  his 
plea,  that  he  was  possessed  of  an  undivided  moiety  of  a  certain  tract  of  land, 
flowed  by  means  of  the  dam,  and  the  plaintiffs  replied,  that  they  were  seised 
in  fee  and  in  mortgage,  and  had  the  right  of  possession,  and  issue  was  taken 
upon  the  rejoinder  that  they  had  not  the  right  of  possession  ;  held,  the  issue 
was  immaterial,  and  a  repleader  was  awarded.  lb.  In  Vermont,  the  mort- 
gagee and  mortgagor  of  land  may  be  joined  in  ejectment  as  defendants, 
even  though  the  mortgagee  never  had  been  in  actual  possession.  Marvin  v. 
Dennison,  20  Verm.  662.  But  he  will  only  be  answerable  for  rents  and 
profits  when  he  has  received  them;  and,  if  the  defendants  plead  severally, 
as  they  may  do,  judgment  may  be  recovered  for  the  damages  against  the 
mortgagor  alone.     lb. 

(n)  So  a  mortgagor,  after  an  assignment  for  benefit  of  creditors,  may 
maintain  a  bill  in  equity  to  cancel  the  mortgage  for  usury.  Strong  v.  Strick- 
land, 32  Barb.  284. 


1(34  THE   LAW    OF   MORTGAGES.  [CH.  VIII. 

IG.  Upon  the  same  ground  of  ownership,  a  mortgagor  in 
possession  gains  a  settlement}  (o)     So  the  mortgagor  is  re- 

1  The  King  v.  St.  Michael's,  Dou?.  DeerfieW,   11   Mass.   827 ;    Groton   v. 

632.     Tlie  uwrt,iaqee,  it  in  possession,  Boxborough,  6  Mass.  50     See  Gtlsum 

mav  gain  a  settleiiifnt.     Tlie  question  v.   Sullivan,  36  N.   H.  368;   Oakham 

turns  on  possession.    Barkhamstead  i'.  i'.  Rutland,  4  Gush.  1.2;    Walden  v. 

Faiuiington,  2  Conn.  600;  Conway  v.  Cabot,  25  Verm.  522. 


(o)  The  following  cases  have  been  decided  upon  this  point  in  England. 
St.  9  Geo.  1,  ch.  7,  provided,  that  no  person  should  gain  a  settlement  by 
purihasinw  any  estate,  whereof  the  consideration  was  less  than  £30,  bond 
fde  paid.  Hence,  if  a  pauper  contract  for  the  purchase  of  an  estate  for 
£39,  which  is  mortgaged  for  £32,  pay  £7,  and  take  a  deed  subject  to  the 
mortgage,  or  if  he  contract  to  purchase  for  £52,  and  pay  but  £12,  mohgag- 
inw  to  tlie  vendor  for  the  balance,  he  gains  no  settlement.  Rex  v.  Matting- 
ly"2T.  R.  12. 

But  where,  after  purchasing  an  estate  for  the  full  value,  the  purchaser 
obtained  from  a  third  person  a  loan  of  money,  with  which  he  discharged  the 
existing  incumbrances,  and  took  an  assignment  of  them,  thus  acquiring  the 
legal  estate,  and  then  mortgaged  to  secure  the  loan,  and  remained  in  pos- 
session forty  days  thereafter;  held,  he  gained  a  settlement.    Rex  v.  Chailey, 

6  T.  R.  755  ;  v.  Olney,  1  M.  &  S.  387  ;  v.  Tedford,  Burr.  Set. 

Cas.  57. 

The  owner  of  an  equity  of  redemption,  having  been  ejected  by  the  mort- 
gagee, was  permitted  by  him  to  occupy  an  untenanted  house  on  the  land, 
for  the  purpose  of  overlooking  some  repairs  which  be  proposed  to  make, 
with  the  intention  of  selling  the  property  and  paying  the  mortgage,  but  with 
no  agreement  as  to  rent.  Having  occupied  three  months,  he  was  removed 
as  a  pauper,  not  having  done  anything  towards  repairing  or  selling.  Held, 
he  gained  no  settlement,  because,  though  he  had  an  equitable  title,  he  was 
not  legally  in  possession,  and  had  neither  jus  in  re  nor  ad  rem.  Rex  v. 
Catherington,  3  T.  R.  771.  In  Massachusetts,  where  the  receipt  of  a  clear 
yearly  income  from  real  estate  gives  the  party  a  legal  settlement;  if  he 
mortgage  it  lor  a  sum,  the  interest  of  which  does  not  leave  to  the  mortgagor 
a  surplus  of  the  sum  required,  he  gains  no  settlement.  Otherwise,  it  seems, 
if  the  wor;i  clear  were  omitted.     Groton  v.  Boxborough,  6  Mass.  50. 

The  Court  remark  :  —  "If  we  do  not  give  the  term  this  effect,  the  quali- 
fication by  a  freehold  estate  would  be  absolutely  nugatory  ;  any  man  involved 
in  debt  might  mortgage  his  estate  to  the  full  value,  so  that  the  interest  of  his 
debt  should  exhaust  the  whole  annual  income  of  his  lands.  If  this  was  the 
fact,  what  reason  can  be  assigned  why,  for  a  property  so  incumbered,  he 
should  be  admitted  to  gain  a  settlement,  when  in  fact  the  value  of  his  real 
properly  is  merely  nominal.     lb.  54. 


CH.  VIII.]  ESTATE    OF   THE   MORTGAGOR.  165 

quired  or  entitled  to  serve  as  a  juror  or  member  of  the 'legis- 
lature, or  may  be  received  as  bail.J  (p)  So  the  mortgagor  in 
possession  is  liable  for  taxes;  and,  if  the  land  is  sold  for 
taxes,  he  cannot  acquire  a  title  by  purchasing  it,  this  being 
only  a  mode  of  paying  them.^  (q)  Upon  the  same  ground 
of  ownership,  the  mortgagor  may  agree  upon  the  boundaries 
of  the  land,  and  thereby  bind  all  persons  except  the  mort- 
gage e.^ 

17.  In  general,  the  possession  of  a  mortgagor,  or  one  claim- 
ing under  him,  is  not  regarded  as  adverse  to  the  mortgagee.* 
"  No  mortgagor  can  oust  his  mortgagee  by  any  entry  or  by 
possession  of  the  land."5(r)    "  Being  tenant  at  will,  (the  mort- 

1  Montgomery  v.  Bruere,  1  South.  *  Hunt  v.  Hunt,  14  Pick.  374. 

267.  5  Per  Shaw,  C.  J.,  Root  v.  Bancroft, 

^  Ralston   v.   Hughes,    13   111.   469.  10  Met.  48  ;  Joyner  v.  Vincent,  4  Dev. 

See  Mass.  Rev.  Sts.  1853,  942.  &  B.  512. 

3  Orr  V.  Hadley,  36  N.  H.  575. 


A  mortgage,  to  indemnify  a  surety  for  the  purchase-money  of  the  land, 
has  the  same  effect  upon  the  question  of  settlement,  as  if  made  directly  to 
the  seller.     Conway  v.  Deerfield,  11  Mass.  327. 

(p)  By  St.  7  W.  &  M.  c.  25,  a  mortgagee  could  not  vote  for  members  of 
Parliament  in  right  of  his  mortgage,  unless  in  possession  or  receipt  of  the 
rents.  The  mortgagor,  on  the  other  hand,  had  this  privilege.  1  Pow.  170  a. 
See  Beamish  v.  The  Overseers,  &c.,  7  Eng.  Law  &  Eq.  485  ;  Moore  v.  Over- 
seers, &c.,  14,  295.  Under  the  game  laws,  a  mortgagor  has  been  held  an 
owner,  or,  in  the  words  of  the  statute,  to  have  real  estate,  etc.,  but  the  clear 
yearbj  value  of  the  property  must  be  over  and  above  the  interest  of  the 
mortgage.     Witherell  v.  Hull,  Caldecot,  230. 

{rf)  In  Massachusetts,  by  St.  1849,  551,  a  mortgagee,  taking  possession,  was 
liable  for  taxes  then  due.  In  Maine,  (Coombs  v.  Warren,  34  Maine,  89) 
land  cannot  be  taxed  to  a  mortgagee  not  in  possession,  and  a  sale  for  non- 
payment of  such  tax  passes  no  title.  (See,  as  to  the  liability  of  mortgaged 
premises  for  a  public  charge  in  the  nature  of  a  tax,  Norwich  v.  Hubbard, 
22  Conn.  587.)  If  mortgaged  land  is  lost  for  non-payment  of  taxes,  the 
mortgagee  is  not  responsible  for  such  loss.     Harvie  v.  Banks,  1  Rand.  408. 

(?•)  On  the  other  hand,  the  possession  of  the  mortgagee  under  the  mort- 
gage before  tlie  law  day,  is  not  adverse  to  the  mortgagor.  McGuire  v.  Shel- 
by, 20  Ala.  456.     The  same  principle  is  applied   to  the  possession  of  the 


166  .  THE   LAW   OF   MORTGAGES.  [CH.    VIII. 

gagor's)  possession  is  not  adverse,  and  any  buildings,  im- 
provements, or  erections  placed  by  the  mortgagor  upon  the 
land,  must  be  considered  as  improvements  upon  the  estate 
mortgaged,  made  by  the  mortgagor  as  owner  of  the  equity 
of  redemption,  and  cannot  be  deemed  a  disseisin.  The 
mortgagor  in  such  case  must  be  considered  as  making  im- 
provements upon  his  own  estate,  of  which  he  has  the  full 
benefit  in  the  enhanced  value  of  the  equity  of  redemption."  ^ 
So  the  assignee  of  the  mortgagor  cannot  hold  adversely,  but 
is  a  mere  tenant  at  will  to  the  mortgagee,  unless  he  pur- 
chased without  notice  of  the  mortgage.^  And  an  absolute 
conveyance  with  warranty,  by  the  mortgagor,  gives  the 
mortgagee  no  new  rights  as  to  foreclosure.^  And  the  same 
principle,  as  to  the  ownership  of  the  property  by  the  mort- 
gagor, has  been  applied  to  a  question  of  title  between  third 
persons.  Thus,  where  a  mortgagor  in  possession  authorized 
a  third  person  to  build  a  house  upon  the  land,  which  was 
afterwards  sold  on  an  execution  against  the  latter ;  in  an 
action  brought  by  the  purchaser  for  the  house  against  one 
claiming  under  a  sale  by  the  mortgagor,  it  was  held  no  de- 
fence, that  the  mortgagee  did  not  authorize  the  erection,  and 
forbade  the  removal,  of  the  house,  as  he  had  a  mere  lien  on 
the  property,  if  any  interest  in  it,  and  the  result  of  this  suit 
would  not  affect  his  title.  A  doubt  was  suggested,  whether 
the  mortgagee  acquired  even  a  lien  upon  the  house,  except 
for  the  purpose  of  securing  the  rents  by  taking  possession  ; 
and  whether  the  building  was  not  the  personal  property  of 
the  builder.'* 

1  Hunt  r.   Hunt,  14  Pick.  885,  386,         2  Newman  v.  Chapman,  2  Rand.  93. 
per  Sliaw,  C.  J.     See  Nichols  c.  Key-        ^  Coffiiig  v.  Taylor,  16  III.  457. 
noids,  1  Ar.jr.  (R.  I.)  30;  Smartle  v.        *  Jewett  v.  Patridge,  3  Fairf.  243. 
Williams.  Salk.  245;  Herbert  v.  Han- 
rick,  16  Ala.  581. 


maiiicd  in  jiossession  six  years  without  acknowledgment  of  the  title  of  the 
nJort;;aj.'or,  bought  out  a  tenant  for  life  of  the  equity  of  redemption,  and 
oc-cu|)io<l  twenty  years  more.  Held,  his  occupancy  was  not  adverse  during 
the  tenancy  for  life,  and  the  reversioner  might  redeem.  Hyde  u  Dallaway, 
2  Hare,  528. 


CH.  VIII.]  ESTATE    OF   THE   MORTGAGOK.  167 

18.  Although  the  mortgagee  is  not  regarded  as  the  owner 
of  the  land,  yet,  independently  of  express  statute  or  agree- 
ment to  the  contrary,  he  has  the  right  of  immediate  possession, 
which  he  may  enforce  either  by  entry  or  action.^  He  ml^ 
enter  even  by  force,  and  after  reasonable  notice  may  remove 
personal  property  on  the  land  to  some  safe  and  convenient 
place.''^     Or  dig  up  the  soil,  without  being  a  trespasser,  ^(s) 

1  Lackey  t\  Holbrook,  11  Met.  460 ;  Stevens    v.   Brown,    W^alk.    CIi.    41; 

Allen  V.  Parker,  27  Maine,  531 ;  Miner  Wales  v.  Mellen,  1  Gray,  512  ;  Taylor 

V.  Stevens,  1  Cusli.  485;  Mansony  v.  v.  Weld,  5  Mass.  120;  Brown  v.  Leach, 

United  States,  &c.,  4  Ala.  N.  S.  745,  35  JNJaine,    ot) ;    Brown  v.   Stewart,   1 

746;  Hobart  y.  Sanborn,  13  N.H.  226;  Md.  Cb.  87;  Forbusb   v.  Goodwin,  9 

Harmon  v.   Short,  8  Sm.   &  M.  433;  Fost.  321. 

Walcop  V.   McKinney,   10   Mis.   229  ;  "-^  Allen  v.  Bicknell,  36  Maine,  436. 

Smith  V.  Tavlor,  9  Ala.  633  ;  Mcln-  ^  q  Pq^^^  321. 
tyre  v.  Whitfield,  13   Sm.  &  M.  88 ; 

(s)  In  several  of  the  States,  this  snbject  has  been  regulated  by  statute. 
In  Massachusetts,  the  mortgagee's  general  right  of  possession  is  recognized. 
(Mass.  Rev.  Sts.  635.)  So  in  Maine,  (Me.  Rev.  Sts.  563  ;  Ruby  v.  Abys- 
sinian, &c.,  3  Shepl.  306.)  In  Vermont,  it  is  provided,  that  the  mortgagor 
may  retain  possession  till  breach  of  condition,  unless  the  deed  clearly  show 
the  contrary.  So  in  Wisconsin.  Rev.  Sis.  ch.  78,  §  1210.  In  New  York, 
a  statutory  provision  limits  the  mortgagee's  remedy  for  possession  to  a  suit 
upon  the  special  contract,  if  any,  or  to  a  process  for  foreclosure  and  sale, 
after  default.  2  N.  Y.  Rev.  Sts.  408.  See  Syracuse,  &c.  v.  Tallman,  31 
Barb.  201.  In  Indiana,  the  statute  of  1843,  depriving  a  mortgagee  of  the 
right  of  possession,  has  no  effect  after  foreclosure  and  sale.  Jcnes  v. 
Thomas,  8  Blackf.  428.  See  Morgan  v.  Woodward,  1  Cart.  446  ;  Hanna  v. 
Countryman,  lb.  493;  Smith  v.  Porter,  35  Maine,  287.  In  Arkansas,  if  the 
mortgagee,  contrary  to  agreement,  by  process  of  law  obtain  possession  be- 
fore breach  of  condition,  he  is  liable  to  an  action  of  trespass  ;  and  also  to 
the  costs  of  a  proceeding  in  equity  instituted  lor  his  own  relief  Mooney  v. 
Brinkley,  17  Ark.  340.  In  case  of  such  agreement,  the  mortgagee  cannot 
maintain  a  process  of  forcible  entry,  &c.  ;  but,  if  the  property  is  depreciat- 
ing from  neglect,  may  by  bill  in  equity  have  it  committed  to  receivers.     lb. 

Where  the  bond  secured  by  a  mortgage  provides,  that,  if  either  party  shall 
be  dissatisfied  with  the  performance,  it  shall  be  submitted,  finally,  to  refer- 
ees ;  the  mortgagee  may  lawfully  enter  for  an  actual  breach,  without  prov- 
ing it  by  such  submission.     Hill  v.  Moore,  40  Maine,  515. 

In  some  cases  of  hardship,  equity  will  not  aid  a  mortgagee  to  maintain  a 
suit  for  foreclosure,  even  after  breach  of  condition.  Thus  A.  contracted  to 
convey  to  B.,  free  of  incumbrance.  Part  of  the  price  was  paid,  and  the 
balance  was  to  be  secured  by  mortgage,  with  the  right  of  foreclosure  in 


■[68  rUE   LAW   OF   MORTGAGES.  [CH.  VIII. 

And,  in  an  action  on  the  deed,  he  is  not  required  to  show  a 
breacli  of  the  condition,  or  previous  notice.^  So,  where  the 
mortoatyce  has  entered  before  breach  of  condition  without 
Ibtice,  a  tenant  at  will  under  him  may  maintain  an  action 
of  trespass  against  the  mortgagor,  for  entering  upon  the 
premises,  and  expelling  him  therefrom.^  (t)  So  the  mort- 
gagor cannot  maintain  an  action  of  trespass  for  the  entry, 
against  the  mortgagee  and  an  officer  who  entered  with  him, 
by  opening  an  outer  door  in  the  absence  of  the  mortgagor  and 
his  family,  without  previous  notice  to  quit;  although  the  officer 
attached  the  plaintiff's  goods  upon  such  writ.^  Nor  can  the 
mortgagor  maintain  trespass  against  the  mortgagee  for  enter- 
ing and  carrying  away  a  fixture,*  or,  without  a  previous  entry, 
entering  and  removing  the  soil.^  So,  under  the  mortgage  of 
a  term,  conditioned  for  the  payment  of  a  certain  sum  with 
interest,  at  certain  periods,  with  a  power  to  sell  after  three 
months'  notice,  in  case  of  non-payment,  and  a  covenant  by 

1  Darling  V.  Chapman,  14  Mass.  104.         *  Cbellis  v.  Stearns,  2  Fost.  312. 
-  Keed  c.  Davis,  4  Pick.  217.  ^  Purbush  v.  Goodwin,  9  Fost.  321. 

3  Lackey  v.  Holbrook,  11  Met.  460. 


twenty  days  after  the  interest  should  fall  due.  At  the  time  appointed  for 
the  conveyance,  the  land  was  subject  to  the  lien  of  a  judgment,  but,  upon 
A.'s  agreeing  to  e!xtinguish  it,  this  objection  was  waived,  and  the  deed  and 
mortgage  executed.  Interest  fell  due  December  27.  December  31,  the 
judgment  was  cancelled,  but  without  notice  to  B. ;  nor  was  the  interest  de- 
manded. January  22,  B.  was  notified  that  the  mortgage  was  due,  and  the 
interest  was  tendered  and  refused.  Held,  a  bill  for  foreclosure  could  not 
be  maintained.     Broderick  v.  Smith,  26  Barb.  539. 

(^)  In  the  case  of  Reed  v.  Davis,  where  this  point  was  decided,  the  coun- 
sel for  the  defendant  began  to  argue,  that  such  notice  was  required  by  law ; 
but  the  Court  refused  to  hear  an  argument  upon  the  question,  saying  it  was 
one  of  the  ^^ettled  points  of  law  that  notice  was  not  necessary.  In  the  same 
case,  brought  for  breaking  and  entering  the  plaintiff's  dwelling-house,  put- 
ting out  liis  furniture,  and  forcibly  expelling  the  plaintiff  and  his  family ;  the 
Court  refused  to  set  aside  a  verdict  for  S500  damages.  A  mortgagee  of 
Blaveti,  alter  breach  of  condition,  may  lawfully  seize  them,  after  night,  for 
the  purpose  of  foreclosure,  without  violence  to  the  mortgagor,  his  family  or 
houseH.  batterlhwaite  v.  Kennedy,  (Ct.  of  Err.  S.  C.)  Law  Rep.  Aug.  1849, 
p.  20G. 


CH.  VIII.]  ESTATE    OF   THE   MORTGAGOR.  169 

the  mortgagor  to  pay,  and  that  the  mortgagee,  at  any  time 
after  default,  might  enter  and  take  the  rents  and  profits  for 
the  residue  of  the  term ;  the  mortgagee  may  enter  before 
default,  and  before  any  day  named  for  payment.^ 

19.  But,  if  the  mortgagee  enters  under  a  claim  adverse  to 
the  mortgage  title,  the  mortgagor  may  maintain  an  action 
of  trespass  against  him.^  (m)  And  an  entry  by  a  mortgagee 
to  survey  the  premises,  merely  for  the  purpose  of  obtaining 
information  respecting  the  boundaries,  or  to  exercise  a  power 
not  warranted  by  the  mortgage,  as  to  flow  the  land  by  a  dam 
erected  on  other  land  belonging  to  him ;  is  not  a  possession 
under  the  mortgage.^ 

20.  An  agreement,  that  the  mortgagor  may  retain  posses- 
sion, must  appear  by  the  deed  itself,  or  some  other  writing ; 
parol  evidence  of  it  is  insufficient,  (v)  And  this  doctrine  has 
been  applied,  even  in  a  case  where  the  mortgage  was  condi- 
tioned to  support  the  mortgagee  and  his  wife,  (w)  and  the 
facts  indicated,  that  the  mortgagor's  only  resource  for  fur- 
nishing such  support  was  in  the  use  of  the  estate  mortgaged. 
In  that  case,^  the  Court  remark  :  —  "  There  can  be  no  doubt 
that  the  parties  intended  that  the  mortgagor  should  remain  in 
possession,  until  there  was  a  breach  of  the  condition  of  the 
deed.  But  by  the  principles  of  the  common  law,  as  well  as 
our  own  statutes  relating  to  the  conveyance  of  real  estate, 
agreements  to  that  effect  must  be  in  writing  to  be  obligatory. 

1  Roa;ers  v.  Grazebrook,  8  Ad.  &  El.  ^  Great  Falls,  &c.  v.  Worster,  15  N. 
(N.  S.f895.  H.  412. 

2  Merithew  v.  Sisson,  3  Kerr,  373.  *  Colman  v.  Packard,  16  Mass.  39, 

40. 

(m)  As  to  the  title  of  the  Jieir  and  executor  of  a  mortgagee,  who  dies,  after 
having  entered  before  breach  of  condition,  see  Smith  v.  Dyer,  16  Mass.  18. 

(y)  Whether  the  same  courts,  which  allow  a  mortgage  to  be  itself  created 
by  parol  evidence,  might  not  also  receive  parol  proof  of  an  agreement  for 
the  mortgagor's  continued  possession,  is  a  point  perhaps  deserving  of  consid- 
eration. 

{iv)  See,  as  to  the  nature  of  this  class  of  mortgages,  supra,  ch.  6.  In  a 
late  case  in  New  Hampshire,  it  is  held  that  a  deed  thus  conditioned  is  not  a 
mortgage,  but  a  conditional  sale.     Bethlehem  v.  Annis,  40  N.  H.  34. 

VOL.   I.  15 


170  THE   LAW   OF   MORTGAGES.  [CH.  VIII. 

It  is  time  it  was  known  that  contracts  like  this,  where  one 
party  conveys  his  estate  to  another,  in  consideration  of  a  sup- 
port to  be  furnished  by  the  purchaser,  and  the  latter  mort- 
gages the  estate  for  security,  will  not  answer  the  intended  pur- 
poses, without  a  covenant  that  the  mortgagor  shall  remain 
in  possession.  How  the  parties  in  this  case  will  adjust  the 
claims  of  the  mortgagee  for  the  stipulated  support,  when  he 
has  obtained  possession  of  the  estate  out  of  which  it  was 
probably  to  be  afforded,  it  is  difficult  to  tell.  We  however 
cannot  make  law  to  suit  particular  conti-acts." 

21.  In  a  later  case,i  Wilde,  J.,  remarks:  —  "Such  an 
agreement  is  usually  inserted  in  English  mortgages,  and 
may  operate  by  way  of  estoppel,  covenant,  condition,  or 
reservation.  Such  a  clause,  inserted  in  the  mortgage  deed, 
or  other  deed  made  at  the  same  time,  and  being  part  of  the 
same  transaction,  is  undoubtedly  binding  on  the  mortgagee, 
and  is  to  receive  a  liberal  construction,  as  it  generally  has  an 
operation  beneficial  to  both  parties."  And  it  is  remarked  by 
Professor  Greenleaf :  ^  "  Whether,  in  the  absence  of  any  ex- 
press contract,  such  agreement  (for  the  possession  of  the 
mortgagor)  may  be  implied  from  the  fact  alone  of  the  mort- 
gagor being  suffered  to  remain  in  possession  of  the  premises, 
or  from  that  fact,  and  a  corresponding  usage  in  the  country, 
is  not  perfectly  clear  upon  the  authorities.  As  an  inference 
of  law,  perhaps  the  Court  might  not  presume  it ;  but  would 
leave  the  jury  to  find  an  agreement  or  license,  if  properly 
pleaded."  But  it  is  said,^  there  must  be  a  necessary  implica.- 
tion,  to  give  the  mortgagor  an  implied  right  of  possession,  (x) 

1  Flagg  I'.  Flagg,  11  Pick.  477.    See  Sbute  v.  Grimes,  7  Blackf.  1 ;  Slier- 

Gcorge's,  &c.  v.  Detwold,  1  Md.  225 ;  man  v.  SJierman,  3  Ind.  337. 

Cbellia  v.  Stearns,  2  Fost.  312.  3  Hobart  v.  Sanborn,  13  N.  H.  226  ; 

-  2  Greenl.   Cruise,   102,    n.      See  Wales  v.  Mellen,  1  Gray,  513. 


(a-)  In  the  case  of  Jamieson  v.  Bruce,  (6  Gill  &  J.  72,)  a  mortgage  was 
made  on  tlie  19th  of  August,  1831,  of  certain  slaves,  with  a  condition  to  be 
void,  if  the  debt  were  paid  on  or  before  September  1,  1832.  There  was  no 
8tipul,ition  for  the  mortgagor's  remaining  in  possession  ;  but  he  was  allowed 
thus  to  remain  till  November,  1831,  when  the  mortgagee  took  possession  of 


CH.  VIII.]  ESTATE   OF   THE   MORTGAGOR.  171 

It  has  been  held,  that  such  agreement  may  be  implied  from 
a  note,  made  at  the  same  time  with,  though  not  referred  to 
in,  the  mortgage.^  So,  where  the  mortgagee  of  a  mill  gave 
back  to  the  mortgagor  a  bond,  reciting  the  privileges  which 
the  latter  was  to  have  in  using  the  water,  dam,  &c.,  cov- 
enanting to  build  machinery  in  the  mill,  and  that  neither 
he  nor  others,  by  his  permission,  would  follow  the  business 
while  the  mortgagor  followed  it ;  and  reserving  the  use  of  a 
room  in  the  mill  for  a  specified  time  :  it  was  held  that  the 
mortgagor  had  a  right  of  possession  till  breach  of  condition, 
and  that  a  writ  of  entry  would  not  lie  against  him.^  And, 
contrary  to  a  case  already  cited,  the  weight  of  authority 
seems  to  be,  that  an  agreement  for  the  continued  possession 
of  the  mortgagor  will  be  implied  from  the  fact,  that  the  mort- 
gage is  conditioned  for  the  support  of  the  mortgagee  ;  more 
especially  if  it  clearly  appears  that  such  support  is  to  come 
from  the  land.  Thus,  in  case  of  a  mortgage,  conditioned  to 
deliver  so  much  of  the  produce  of  the  land  annually,  or  sup- 
port the  mortgagees  during  their  lives  ;  held,  till  breach  of 
condition,  the  mortgagor  was  entitled  to  possession,  and 
therefore  the  actual  tenant  of  the  freehold.^  So,  where  a 
farm  was  mortgaged,  upon  the  condition  that  the  mortgagor 
should  carry  it  on  during  the  mortgagee's  life,  and  deliver 
him  half  the  produce  ;  it  was  held,  that  the  mortgagee  might 
enter  to  take  this  part  of  the  produce  ;  but  not  otherwise, 
except  for  waste  or  breach  of  condition.*     So  a  mortgage, 

1  Clay  V.  Wren,  34  Maine,  187.  *  Hartshorn  v.   Hubbard,  2  N.  H. 

2  Bean  v.  Mayo,  5  Greenl.  89.  453.     See  ch.  6. 

3  Lamb  v.  Foss,  8  Shepl.  240. 


the  property  in  the  night,  in  the  absence  of  the  mortgagor,  who  brings  this 
action  of  trespass  against  him.  The  Court  were  refjuested  to  instruct  the 
jury,  that,  if  they  found  from  the  evidence,  that  the  plaintiff' retained  posses- 
sion with  the  defendant's  consent,  and  that  the  property  was  taken  by  the 
defendant,  without  the  plaintiff's  knowledge  or  consent,  and  without  a  pre- 
vious demand,  the  action  was  maintainable  :  but  the  instruction  was  refused ; 
and  the  judgment  of  the  Court  below  was  affirmed. 


17-2  THE   LAW   OF   MORTGAGES.  [CH.  VIII. 

conditioned  to  support  the  mortgagee  during  his  life,  on  the 
estate,  and  keep  it  in  repair;  gives  no  right  of  immedi- 
ate possession.^  So,  where  there  was  a  conveyance  of  a 
farm  by  a  father  to  his  son,  with  a  mortgage  back  to  the 
CTrantor  and  his  wife,  conditioned  that  the  mortgagor,  his 
heirs,  &e.,  should  provide  for  the  maintenance  of  the  mort- 
crawees  during  their  lives  ;  held,  it  was  a  necessary  implica- 
tion, nothing  appearing  to  the  contrary,  that  the  parties  did 
not  contemplate  that  the  mortgagees  should  take  possession 
and  retain  it  until  their  decease,  while  the  mortgagor  was 
duly  performing,  from  time  to  time,  those  acts  to  secure  the 
due  performance  of  which  the  mortgage  was  executed  ;  and 
that  they  could  not  maintain  an  action  for  possession  till 
breach  of  condition  or  the  commission  of  waste.^  [y)  So 
the  condition  of  a  mortgage  was  as  follows  :  —  "  Whereas, 

1  Brown   v.  Leach,   35  Maine,  39  ;     201 ;  ace.  Khoades  v.  Parker,  10  N.  H. 
ace.  Norton  v.  Webb,  Ibid.  218.  83. 

2  Flanders  v.  Lamphear,  9  N.   H. 


(?/)  In  the  same  case  It  -was  further  held,  that  the  place  of  performance  of 
the  condition  was  not  necessarily  the  farm  itself;  but  some  suitable  and  con- 
venient place  for  the  mortgagee,  and  at  the  same  time  one  which  did  not 
impose  hardship  upon  the  mortgagor.  It  should  be  a  reasonable  place  for 
both  parties.  It  was  further  held,  that  by  the  transaction  between  the  par- 
ties a  personal  trust  was  reposed  in  the  mortgagor,  and  a  personal  obligation 
assumed  by  him,  which  he  could  not  assign  over  to  third  persons,  substituting 
them  in  his  place  ;  and  that  if  he  had  attempted  such  transfer,  and  no  longer 
superintended,  at  least,  the  due  fulfilment  of  the  condition,  the  action  might  be 
maintained.  Ibid.  In  the  subsequent  case  of  Holmes  v.  Fisher,  13  N.  H.  9, 
it  was  held,  that,  where  a  mortgage  is  made  to  the  husband,  conditioned  to 
support  him  and  his  wife,  his  administrator,  after  his  death,  must  sue  upon 
the  mortgage.  The  wife  has  no  right  to  enter.  If  she  marry  again,  and 
live  with  her  second  husband  without  claiming  support  under  the  mortgage, 
the  right  is  waived,  and  does  not  revive  till  a  demand  is  made.  A  demand 
need  not  be  made  upon  the  land,  unless  by  the  terms  of  the  deed  the  sup- 
port is  to  be  there  furnished.  She  may  demand  it,  notwithstanding  her  mar- 
riage ;  and  she  may  make  the  demand  upon  the  administrator  of  the  mort- 
gagor. Her  husband  cannot  participate  in  the  support.  If  no  place  is  fixed, 
s!ie  must  be  ready  to  receive  the  support  at  a        venient  place. 


CII.  VIII.]  ESTATE    OF   THE   MORTGAGOR.  173 

the  above-named  Hannah  Wales  (plaintiff)  has  this  clay,  by 
deed,  conveyed  to  the  said  Nathaniel  K.,  (defendant)  the 
above-mentioned  premises,  for  her  future  maintenance  and 
support,  and,  whereas,  the  said  Nathaniel  K.  has,  at  the 
same  time,  reconveyed  the  same  premises  to  said  Hannah, 
as  security  for  such  maintenance  and  support.  Now,  if  the 
said  Nathaniel  K.,  his  heirs,  &c.,  shall,  &c.,  maintain  the  said 
Hannah  in  sickness  and  in  health,  &c.,  and,  at  her  decease, 
give  her  a  decent  burial,  then  the  above,  &c.,  shall  be  void," 
&c.  Held,  no  action  could  be  maintained  by  the  mortgagee 
for  possession  before  condition  broken.  By  taking  the  prem- 
ises from  the  defendant,  the  demandant  would  probably  pre- 
vent him  from  carrying  into  effect  the  purpose  for  which 
alone  the  mortgage  is  expressed  to  be  made.^  (z) 

1  Wales  V.  Mollen,  1  Gray,  512. 


(~)  Mortgage,  conditioned  that  the  mortgagor  should  support  the  mort- 
gagees during  their  lives.  The  equity  of  redemption  having  been  trans- 
ferred, one  of  the  mortgagees,  the  other  being  dead,  brings  an  action  ujjon 
the  mortgage  for  breach  of  condition.  The  plea  alleges,  that  the  assignee 
had  always  offered  to  support  the  demandant  at  his  (the  assignee's)  own 
house,  in  a  different  town  from  that  where  the  land  lay.  Upon  demurrer 
to  the  plea,  it  was  argued  for  the  demandant,  that  the  mortgagees  reposed  a 
personal  trust  and  confidence  in  the  mortgagor  and  his  representatives, 
•which  was  violated  by  assigning  the  former  to  the  care  of  strangers,  and  that 
it  was  to  be  fulfilled  upon  the  land  mortgaged.  The  tenant  contended,  that 
the  mortgagee  could  not  claim  possession,  and  thus  take  the  verj'  fund  from 
•which  her  support  was  to  be  derived.  Held,  the  mortgagees  liad  a  right  to 
be  supported  wherever  they  chose  to  live  ;  not  creating  needless  expense. 
The  demandant,  therefore,  has  a  right  to  possession,  unless  the  mortgagor 
pray  for  conditional  judgment;  in  which  case  an  estimate  may  be  made  of 
the  time  for  which  the  demandant  has  been  left  without  support.  Wilder 
v.  Whittemore,  15  Mass.  262.     See  Gibson  v.  Taylor,  6  Gray   310. 

A  mortgage  was  made  upon  condition  to  furnish  support  for  the  mort- 
gagee and  his  wife,  and  the  use  of  one  third  part  of  the  house  upon  the  land, 
during  their  lives.  In  an  action  of  the  mortgagee  to  recover  possession,  it 
was  held  that  the  plaintiff  could  not  maintain  the  action  without  first  prov- 
ing a  breach  of  condition.  To  show  this,  evidence  was  introduced,  that  the 
defendant  pushed  his  mother  (the  wife  of  the  plaiutiH)  out  of  the  house, 
15* 


174  THE    LAW    OF   MORTGAGES.  [CH.  VIII. 

22.  The  implied  right,  of  possession  of  the  mortgagor  till 
breach  of  condition,  is  often  placed  upon  the  specific  ground 


and  kicked  her  after  she  was  out.  Held,  the  action  could  not  be  main- 
tained. The  Court  sav :  —  "A  refusal  to  permit  the  husband  or  wife  to 
occupy  their  third  would  be  a  breach  of  the  condition,  if  the  third  had  been 
set  oH";  and  a  forcible  ejectment  from  it,  under  any  pretence  of  claim,  or 
upon  a  controversy  about  the  right,  would  be  quite  as  clear  a  breach.  And 
if  no  division  had  been  made,  but  the  parties  were  living  together  as  tenants 
in  conmiou  of  the  house,  it  could  make  no  difference.  The  mortgagor  would 
be  no  better  entitled,  in  such  case,  to  hold  the  other  parties  out,  or  forcibly 
turn  them  or  either  of  them  out.  If  he  did  either,  upon  any  controversy 
about  the  right,  or  any  claim  of  title,  he  could  not  be  said  to  furnish  them 
one  third  part  of  the  house."  But  in  the  absence  of  any  such  claim  or  con- 
troversy, the  transaction  was  a  mere  assault,  though  an  aggravated  one,  and 
not  a  breach  of  condition.  "  The  condition  of  the  mortgage  is  not  an  obli- 
gation to  keep  the  peace  —  even  within  the  house.  The  obligation  to  fur- 
nish support  does  not  include  within  it  a  stipulation  to  treat  with  reverence 
or  affection."     Dearborn  v.  Dearborn,  9  N.  H.  117. 

Bond  and  mortgage,  conditioned  to  support  the  obligee  for  life.  A  bill 
for  foreclosure  alleged  a  breach  for  the  past  year  ;  and  there  were  no  supple- 
mentary pleadings.  Held,  the  plaintiff  could  not  have  a  decree  for  breaches 
subsequent  to  the  commencement  of  suit ;  the  provisions  of  the  Revised 
Statutes  (2,  192,  193),  relating  to  foreclosure  and  sale  for  such  instalments, 
being  applicable  only  to  mortgages  for  the  payment  of  money.  Ferguson 
i;.  Ferguson,  2  Comst.  360.     (Three  judges  dissented.)  • 

A  mortgagee,  who  has  taken  possession  of  premises  mortgaged  for  his  sup- 
port, and  on  breach  of  condition  has  for  several  years  supported  himself,  is 
entitled  to  a  decree  to  quiet  his  title.  Frizzle  v.  Dearth,  2  Wms.  (Verm.) 
787. 

A  grantee  gave  to  his  grantor  a  bond,  in  consideration  of  the  deed,  con- 
ditioned to  support  the  grantor  for  life ;  otherwise,  to  reconvey.  Held,  not 
a  mortgage,  but  a  contract  which  equity  would  specifically  enforce.  Rob- 
inson V.  Robinson,  8  Gray,  447. 

A  condition  for  support  is  personal  to  the  mortgagor.  It  cannot  be  trans- 
ferred ;  nor  is  the  land  liable  to  creditors  of  the  mortgagor.  If  the  mort- 
gage in  terms  includes  heirs,  executors,  and  administrators,  they  are  bound 
by  it.  A  mortgage  from  the  former  mortgagor  to  his  creditors  is  valid,  but 
does  not  authorize  them  to  perform  the  condition  of  the  first  mortgage. 
Alter  the  death  of  the  mortgagee  and  mortgagor,  unless  there  had  been  a 
previous  foreclosure,  the  property  belongs  to  the  mortgagor's  estate.  East- 
man t;.  Balcbelder,  36  M.  H.  141. 


CH.  VIII.]  ESTATE   OF   THE  MORTGAGOR.  175 

of  a  re-demise  from  the  mortgagee.  Thus  a  mortgage  was 
made,  with  a  proviso  for  redemption  on  payment  of  princi- 
pal and  interest,  June  5,  1834,  but  with  an  agreement  that 
the  principal  should  not  be  called  in  before  December  5, 
1840,  if  the  interest  were  regularly  paid  in  the  mean  time  ; 
and  that  the  mortgagor  should  occupy  and  take  the  profits 
until  default.  Held,  the  fee  vested  in  the  mortgagee,  but  the 
premises  were  re-demised  to  the  mortgagor  till  December  5, 
1840,  if  the  interest  were  regularly  paid.^  So  a  mortgage, 
made  to  secure  an  annuity,  conveyed  the  land  in  trust,  among 
other  things,  to  permit  the  mortgagor  to  receive  the  rents  till 
a  default,  for  sixty  days,  in  payment  of  the  annuity.  Held, 
the  conveyance  amounted  to  a  re-demise  to  the  mortgagor 
till  such  default,  and  that  a  notice  to  quit,  given  by  him  in 
his  own  name  to  a  tenant  whom  he  let  into  possession  before 
the  mortgage,  was  sufficient  to  sustain  ejectment  against  the 
tenant  on  his  own  demise.^  So  the  plaintiff  brought  an  ac- 
tion of  ti-espass  against  an  officer,  for  breaking  and  entering 
his  house,  and  seizing  fixtures  and  goods  therein.  The  plea 
denied  the  plaintiff's  possession.  The  defendant  also  justi- 
fied under  a^z.  fa.  against  one  Franks,  who  was  a  tenant  for 
years,  and  had  demised  to  the  plaintiff,  by  way  of  mortgage, 
for  the  residue  of  the  term,  wanting  one  day.  The  plaintiff 
had  not  entered.  The  deed  demised  to  the  plaintiff  to  hold 
henceforth,  (as  above  stated,)  subject  to  the  following  pro- 
viso. It  also  conveyed  the  fixtures,  &c.,  to  hold  for  his  own 
use,  &c.,  with  the  same  condition.  The  deed  also  contained 
provisos  for  reconveyance  upon  payment  of  the  debt  on  the 
24th  of  June,  and  also,  that,  upon  non-payment  at  that  time, 
the  plaintiff  might  enter  and  take  the  profits,  and  sell  or  un- 
derlet. There  was  no  covenant  that  Franks  should  remain 
in  possession  till  the  24th  of  June.  Held,  the  plaintiff  had 
no  right  of  possession  till  that  time,  and  that  the  action  could 


1  Wilkinson  v.  Hall,  4  Scott,  301.  gard  to  this  case  :  —  "  It  may  be  ques- 

2  Doe  V.  Goldwin,  2  Ad.  &  EI.  (N.  tionable  whether  sufficient  attention 
S.)  143.  In  Doe  v.  Daj-,  2  Ad.  &  El.  was  paid  in  that  case  to  the  point  as 
(N.  S.)  155,  Lord  Denman  says,  in  re-  to  the  certainty  of  the  time." 


176  THE   LAW   OF   MORTGAGES.  [CH.  VIII. 

not  be  maintained.!  And  where  the  mortgage  provides  that 
the  mortgagor  may  enjoy  the  land,  until  default  in  payment 
by  a  certain  day ;  although  the  land  is  occupied  by  tenants, 
the  proviso  will  operate  as  a  re-demise  for  this  period.^ 

23.  But  on  the  other  hand,  it  is  said,  where  the  proviso  is, 
that  the  mortgagee  may  enter  and  take  possession  on  default 
of  payment  at  the  day  ;  or  that  he  shall  not  take  the  profits 
till  default  in  payment ;  oj,  it  seems,  that  the  mortgagor  shall 
take  the  profits  until  default  in  payment  (no  definite  time 
being,  in  the  last  case,  fixed  for  payment) :  the  proviso  only 
amounts  to  a  covenant,  and  the  mortgagee  may,  at  any  time, 
bring  ejectment  without  notice,  though  by  the  proviso  he  be 
required  to  give  notice  before  entry,  or  though  there  be  a  cov- 
enant for  further  assurance  by  the  mortgagor  in  case  of  de- 
fault in  payment.^ 

24.  If  the  mortgagee  of  a  term,  where  the  mortgage  pro- 
vides that  the  mortgagor  may  retain  possession,  assigns  the 
term  without  the  mortgagor's  joining  or  being  a  party;  the 
latter,  from  being  in  the  nature  of  a  tenant  at  will,  becomes 
in  the  nature  of  a  tenant  at  sufferance.*  It  is  also  held,  that 
the  mortgagor's  continuing  in  possession  would  never  make 
a  disseisin,  for  a  tenant  at  sufferance  has  but  a  bare  posses- 
sion, and  no  freehold ;  that  the  covenant  for  the  mortgagor's 
possession  governs  all  assignments  of  the  mortgagee ;  and, 
therefore,  that  an  assignee  of  the  mortgage  of  a  term  might 
validly  reassign  it,  notwithstanding  such  possession,  without 
any  reentry,  and  without  the  mortgagor's  joining.  And  the 
assignee's  bringing  an  ejectment  is  not  to  be  construed  as  an 
election  to  consider  the  mortgagor  as  a  disseisor,  because  the 
action  is  brought,  not  to  recover  the  term^  but  only  the  pos- 
session, being  the  only  remedy  for  this  purpose  except  a  for- 
cible entry,  which  the  law  fprbids.^ 

25.  It  will  be  seen,  hereafter,  that  the  law  has  generally 

I  Wliecler  v.  Montefiore,  2   Ad.   &        3  Coote,  376 ;  Doe  v.  Day,  2  Q.  B. 

Ell.  (}*.  S.)  137.  147  ;  Doe  v.  Lightfoot,  8  M.  &  W.  553 ; 

^  \\  ilkinson  v.  Hall,  3  Bing.  (N.  C.)  Rogers  v.  Grazebrook,  8  Q.  B.  895. 
508 ;  rowBcly  v.  Blackmau,  Cro.  Jac.         «  1  Pow.  162  h  ;  Skin.  423. 
*"'«*•  6  Smartie  v.  Williams,  Salk.  245. 


CH.  viil]  estate  of  the  mortgagor.  177 

provided  certain  specific  modes  and  forms  of  taking  posses- 
sion, for  the  purpose  of  effecting  the  foreclosure  of  a  mort- 
gage. It  has  been  held,  however,  that,  if  a  mortgagee  had  a 
legal  right  to  enter  for  breach  of  condition,  the  entry  is  law- 
ful, though  he  entered  without  executing  his  purpose,  or  even 
for  other  purposes.  Though  the  entry  cannot  operate  as 
an  entry  to  foreclose,  unless  made  in  the  manner  prescribed 
by  law ;  still  it  is  a  lawful  act.^  So  a  mortgagee  of  an  un- 
divided share  of  land,  taking  possession,  is  entitled  to  his 
share  of  the  rents  and  profits,  although  the  entry  was  made 
for  foreclosure,  and  was  insufficient  for  that  purpose.^  And 
when  the  mortgagee  of  land,  with  a  mill  thereon,  makes  an 
entry  under  his  mortgage  title  upon  the  premises,  and  de- 
mands of  the  tenant,  holding  by  parol  lease  from  the  mort- 
gagor, to  attorn  to  him,  and  the  tenant  assents  to  such  de- 
mand ;  such  entry  and  attornment  make  the  mortgagee  an 
occupant  of  the  mill,  within  the  provisions  of  the  Rev.  Sts. 
of  Massachusetts,  ch.  116,  §  24,  and  liable  to  an  action  for 
annual  or  gross  damages  for  flowage ;  although  the  mortga- 
gee did  not  enter  for  the  purpose  of  foreclosure.-^ 

1  Blaney  v.  Bearce,  2  Greenl.  138.  ^  Abbott  v.  Upham,  13  Met.  172. 

2  Sliepard  v.  Kichards,  2  Gray,  42J:. 


178 


THE   LAW   OF   MORTGAGES. 


[CH.  IX. 


CHAPTER   IX. 

NATURE    OF    THE    MORTGAGOR'S   INTEREST,    WHILE    LEFT    IN   POS- 
SESSION. 


1.  Wlietlier  the  mortgagor  is  a  ten- 
ant, rraircr,  (igent.  &C. 

9.  Kcmoilies  of  the  mortgagee  for 
rent,  ami  for  obtaining  possession.  No- 
tice to  quit,  wliether  necessary. 

12.  Doctrine  in  tiie  United  States. 

18.  Lease  by  the  mortgagor  ;  re- 
spective titles  of  mortgagee,  mortgagor, 
and  lessee  ;  case  of  Keech  v.  Hall. 


35.  Distinction  between  leases  made 
after,  and  before,  the  mortgage. 

38.  Joint  lease  hy  mortgagor  and 
mortgagee  ;  covenants  in  tlie  lease  of  a 
mortgagor,  whether  assignable,  &c. 

45.  Gene/al  summary. 

46.  Liability  of  a  mortgagee  of  lease- 
hold upon  the  covenants  ;  case  of  Eaton 
V.  Jacques. 


1.  The  precise  nature  of  the  mortgagor's  interest  or  tenure, 
while  he  retains  possession,  has  been  the  subject  of  much 
speculation  and  various  opinions.  He  has  been  called  tenant 
at  will,  quasi  tenant  at  will,  tenant  at  sufferance,  agent,  servant, 
and  receiver  (a)  of  the  mortgagee.  So  the  possession  of  the 
mortgagor  has  sometimes  been  put  upon  the  ground  of  li- 
cense.^    But  objections  have  been  made  to  each  of  these 

1  Rockwell  V.  Bradley,  2  Conn.  1. 


(a)  In  Moss  v.  Gallimore,  (Doug.  283,)  Asburst,  J.,  remarked,  that,  where 
there  is  no  agreement  amounting  to  a  re-demise  to  the  mortgagor,  and  ten- 
ants are  in  possession,  and  the  mortgagor  left  in  receipt  of  rents  ;  he  is  not  a 
tenant,  because  a  tenant  at  will  cannot  have  an  under-tenant,  but  be  is  in 
the  nature  of  a  receiver.  "  Whoever  wishes  to  wade  through  all  the  old 
books  on  this  subject,"  (the  nature  of  the  title  of  the  mortgagor)  "  will  find 
a  great  collection  of  cases  in  Comyns's  Digest,  title  Estate  1,  H.  But  it  is 
an  Herculean  labor."  Per  Buller,  J.,  Birch  v.  Wright,  1  T.  R.  383.  As 
to  the  c(juivocal  relation  of  mortgagor  and  mortgagee,  a  learned  judge  ex- 
claims, "  Quo  teneam  vultus  rautantem  Protea  nodo."  Cholmondeley  v. 
Clinton,  2  .Jac.  &  W.  183.  See  McKim  v.  Mason,  3  Md.  Ch.  186.  A  7nort- 
gagee,  taking  possession,  has  been  sometimes  held  subject  to  the  liabilities  of 
a  tenant.    iMorrison  v.  McLeod,  2  Ired.  Ch.  108. 


CH.   IX.]      ESTATE   OF   THE   MORTGAGOR,   IN   POSSESSION.  179 

titles,  upon  the  ground  that  in  some  one  or  more  particulars 
the  rights  and  duties  of  a  mortgagor  differ  from  those  of 
either  of  the  persons  above  named.  Thus  he  is  said  to  want 
the  chief  characteristic  of  a  tenant,  which  is  the  payment 
of  rent;  of  an  agent,  in  not  being  liable  to  account;  and  of 
a  servant,  inasmuch  as  the  mortgagee  has  never  had  posses- 
sion. 

2.  Hence,  it  has  been  remarked  by  a  distinguished  judge, 
"  it  is  very  difficult  to  say  what  the  mortgagor's  estate  is  ; "  ^  (b) 
and,  in  another  case,  "  one  is  much  at  a  loss  as  to  the  proper 
terms  in  which  to  describe  the  relation  of  mortgagor  in  pos- 

1  Per  Patteson,  J.,  Doe  v.  Barton,  11  Ad.  &  Ell.  311. 


(b)  The  following  passage,  from  a  work  of  high  authority,  presents  a  sum- 
mary view  of  the  technical  embarrassments  connected  with  the  title  of  the 
mortgagor :  — 

'.'  It  is  the  common  course,  if  a  man  make  a  feoffment  in  fee,  or  other 
estate  upon  condition,  that  if  such  a  thing  be  or  be  not  done  at  such  a  time, 
that  the  feoffer,  &c.,  shall  reenter,  to  the  end  that  in  this  case  the  feoffer, 
&c.,  may  have  the  laud,  and  continue  in  possession  until  that  time,  to  make 
a  covenant  that  he  shall  hold  and  take  the  profits  of  the  land  until  that  time  ; 
and  this  covenant  in  this  case  will  make  a  good  lease  for  that  time,  if  the 
uncertainty  of  the  time,  whereunto  care  must  be  had,  do  not  make  it  void. 
(Mr.  Preston  adds  :  '  The  limitation  of  a  certain  term,  with  a  collateral  de- 
termination on  the  event,  would  meet  the  difficulties  of  the  case.')  And, 
therefore,  if  A.  bargain  and  sell  his  land  to  B.,  on  condition  to  reenter  if  he 
pay  him  SlOO,  and  B.  doth  covenant  with  A.,  that  he  will  not  take  the  prof- 
its until  default  of  payment;  in  this  case,  howbeit  this  may  be  a  good  cov- 
enant, yet  it  is  no  good  lease,  ('  for  want,'  says  Mr.  Preston,  '  of  a  more 
formal  contract,  and  also  for  want  of  certainty  of  time.')  And  if  the  mort- 
gagee covenant  with  the  mortgagor,  that  he  will  not  take  the  profits  of  the 
land  until  the  day  of  payment  of  the  money ;  in  this  case,  albeit  the  time  be 
certain,  yet  this  is  no  good  lease,  but  a  covenant  only,  ('  since,'  says  Mr. 
Preston, '  the  words  are  negative  only,  and  not  affirmative.')  It  may  perhaps 
be  concluded,  that,  in  order  to  make  a  re-demise,  there  must  be  an  ajjinnative 
covenant,  that  the  mortgagor  shall  hold  for  a  determinate  time,  and  that 
when  either  of  those  elements  is  wanting,  there  is  no  re-demise."  1  Smith's 
Leading  Cases,  568,  n.,  citing  Shep.  Touch.  8th  ed.  272.  See  Jennot  v. 
Cooly,  1  Lev.  170. 


180  THE   LAW   OF   MORTGAGES.  [CH.   IX. 

session  and  mortgagee."  ^  So  Lord  Denman  says  :^  —  "  It  is 
very  dangerous  to  attempt  to  define  the  precise  relation  in 
whicli  the  mortgagor  and  mortgagee  stand  to  each  other  in 
any  other  terms  than  those  very  words  ;  but  thus  much  is 
established  by  the  cases  of  Partridge  v.  Bere,  and  Hitchman 
V.  "Walton,  that  the  mortgagee  may  treat  the  mortgagor  as 
being  rightfully  in  possession,  and  himself  as  reversioner  ;  so 
that,  as  long  as  he  be  not  treated  as  a  trespasser,  his  posses- 
sion is  not  hostile  to  nor  inconsistent  with  the  mortgagee's 
right." 

3.  The  following  remarks  upon  this  subject  are  made  by 
INIt.  Coventry:^  —  "A  mortgagor  differs  from  a  tenant  at 
will  in  many  respects.  He  is  to  pay  interest,  not  rent.  He 
is  not  entitled  to  notice  to  quit,  nor  to  emblements  ;  the  crop, 
as  well  as  the  land,  being  held  as  security  for  the  debt,  (c) 

1  Ibid.  Doe  v.  Williams,  5  Ad.  &  Ell.        ^  i  Po^,  157^  „.  gpe  Tucker  v.  Keel- 
297.  er.  4  Vern.  161;   Butler  v.  Paige,  7 

-  Doe  V.  Barton,  11  Ad.  &  EU.  314.      Met.  40. 


(c)  Upon  this  particular  point  many  cases  are  to  be  found  in  the  books,  some 
of  which  may  be  heie  properly  cited.  "A  mortgagor  resembles  a  person  who 
has  executed  a  statute  or  recognizance.  Whatever  these  persons  do  to  give 
value  to  the  property  under  pledge,  is  done  for  the  benefit  of  the  creditor." 
Doe  V.  Giles,  5  Bing.  427.  One  is  bound  in  a  statute  to  another,  and  sows 
the  land.  The  conusee  extends  the  lauds,  which  are  delivered  to  him  in  ex- 
ecution. The  conusee  shall  have  the  corn  sown.  So  in  case  of  a  recogni- 
zance. Barden's  case,  2  Leon.  54.  On  the  other  hand  it  is  said,  the  im- 
provements made  by  a  mortgagor  in  possession,  in  contemplation  of  law  he 
makes  for  himself  and  to  enhance  the  general  value  of  the  estate,  not  like 
a  tenant  for  its  temporary  enjoyment.  Winslow  v.  Merchants',  &c.  4  Met.  310. 
The  issue  of  a  mortgaged  slave,  born  after  the  mortgagee's  title  has  become 
absolute  at  law,  and  during  the  possession  of  the  mortgagor,  is  liable  for  the 
debt.  Such  issue  is  compared  by  the  Court,  in  this  respect,  to  the  growing 
crop  upon  land  mortgaged.  Also  to  the  case  of  the  pledge  of  a  flock  of  sheep, 
where  the  young  afterwards  born  become  also  subject  to  the  pledge.  Evans 
V.  Merriken,  8  Gill  &  J.  99  ;  Hughes  v.  Graves,  Litt.  317  ;  Story's  Bailm.  200. 
Mr.  Coventry  remarks,  (1  Pow.  161,  n.)  "when  it  is  said  that,  a?  between 
mortgagee  and  mortgagor,  the  mortgagee  is  entitled  to  emblements,  the 
meaiung  is,  that  when  the  mortgagor  has  personally  occupied  the  premises, 


CH.  IX.]        ESTATE    OP   THE   MORTGAGOR,   IN   POSSESSION.  181 

He  may  have  a  tenant  under  him,  which  a  lessee  at  will  can- 
not ;  a  demise  by  the  latter  being  in  itself  a  desertion,  which 


and  the  actual  possession  is  afterwards  delivered  to  the  mortgagee  by  the 
sherifT  or  otherwise,  the  growing  crops  which  are  found  upon  the  premises 
become  part  of  the  security,  and  may  be  applied  by  the  mortgagee  to  his 
own  use ;  but  the  principle  does  not  apply  to  the  case  where  the  crrowinw 
crops  have  been  carried  otf  by  the  mortgagor  before  the  mortgao-ee  obtains 
possession,  and  between  the  time  of  his  demand  and  recovery  of  the  posses- 
sion. Let  it  be  supposed  that  a  mortgagee  recovers  the  possession  by  eject- 
ment, from  a  mortgagor  who  had  personally  occupied  the  property,  after  the 
crops  are  severed  and  sold.  Such  a  mortgagee  might  probably,  if  he  thought 
it  worth  his  while,  bring  an  action  for  the  mesne  profits  from  the  time  of  the 
demise  laid,  but  he  could  not  recover  from  the  mortgagor  any  thin  o-  more 
than  the  same  occupation  rent  which  he  could  have  recovered  agamst  a  ten- 
ant of  the  mortgagor,  whose  tenancy  had  commenced  subsequently  to  the 
mortgage,  and  without  the  privity  of  the  mortgagee."  In  Hodgson  v.  Gas- 
coigne,  5  B.  &  A.  88,  it  was  held,  that,  after  judgment  in  ejectment  at  the 
suit  of  the  landlord,  the  value  of  the  growing  crops,  though  sold  or  seized  in 
execution,  might  be  recovered  in  an  action  for  mesne  profits,  if  the  sale  or 
execution  were  subsequent  to  the  day  of  the  demise  laid  in  the  declaration. 
(See  Toby  v.  Reed,  9  Conn.  225.)  Where  a  mortgagor  leases  the  land,  the 
lessee  has  no  right  to  crops  growing  thereon  at  the  time  of  foreclosure  and 
sale  under  the  mortgage  ;  and,  if  the  mortgagee  himself  purchase  under  such 
sale,  he  may  maintain  trespass  against  the  lessee  for  taking  and  carryinofthem 
away.  Lane  v.  King,  8  Wend.  584.  So  the  purchaser  of  mortgaged  prem- 
ises, sold  under  a  statute  foreclosure,  is  entitled  to  crops  sown  by  the  mort- 
gagor, and  growing  on  the  land  at  the  time  of  sale.  Hence,  he  is  not  liable 
in  trover  to  a  purchaser  of  such  crop  at  an  execution  sale  against  the  mort- 
gagor ;  such  purchaser  acquiring  only  the  title  of  the  mortgagor  himself,  and 
the  crop  as  well  as  the  land  being  a  security  for  the  mortgage  debt.  Shep- 
ard  V.  Philbrick,  2  Denio,  174.  Since  a  mortgage  binds  not  only  the  land, 
but  the  crops,  while  growing,  and  until  severed,  a  person  pui-chasing  the 
premises  under  a  statute  foreclosure  is  entitled  to  the  crops,  in  preference  to 
one  bidding  the  same  off  at  a  sale  subsequently  made,  under  a  decree  in 
bankruptcy  against  the  mortgagor,  by  the  assignee  in  bankruptcy.  Gillett 
V.  Balcom,  6  Barb.  370.  So  if  land  mortgaged  be  sold  under  a  decree  of 
foreclosure,  the  purchaser  will  be  entitled  to  the  crops  growing  at  the  time 
of  the  sale,  in  preference  to  a  person  claiming  under  the  mortgagor,  and 
whose  claims  originated  subsequently  to  the  mortgage.  Jones  v.  Thomas,  8 
Blackf.  428.  In  May,  1822,  a  decree  of  foreclosure  was  rendered  upon  a 
mortgage,  and  the  marshal  ordered,  unless  payment  were  made  in  six  months, 
VOL.  I.  16 


232  THE   LAW   OF   MORTGAGES.  [CH.  IX. 

in  law  amounts  to  a  determination  of  the  will.  He  may- 
assign  or  convey  his  estate,  subject  to  the  mortgage  ;  while  a 
tenant  at  will  has  no  assignable  interest.  A  mortgagor  has 
in  diflerent  cases  been  called  tenant  at  will,  tenant  by  suffer- 
ance,^  receiver,  agent,  and  servant  of  the   mortgagee ;  and 

1  Brown   r     Cram,    1   N.    H.    171 ;     Cameron  v.  Irwin,  5  Hill,  281  ;  quasi 
Powsely  I'.  Blackman,  Cro.  Jac.  659  ;    tenant  at  suflerance,  1  Pow.  174,  n.  E. 


to  sell  the  property  in  satisfaction  of  the  debt.  The  mortgagor  was  left  in 
possession  till  June,  1823,  when  the  marshal  sold  the  property,  and  the 
mortgagee  became  the  purchaser.  In  the  spring  of  that  year,  the  mort- 
gagor sowed  the  land,  and  the  mortgagee  after  purchasing  completes  the 
crop.  Before  the  marshal's  sale  is  reported  and  confirmed,  an  execution  is 
levied  upon  the  crop,  then  gathered,  by  creditors  of  the  mortgagor ;  and  the 
morttraTee  files  a  bill  for  an  injunction  against  a  sale  under  the  execution. 
Held,  the  bill  should  be  sustained  ;  that  the  general  doctrine  of  emblements 
had  no  application,  but  the  case  turned  solely  upon  the  contract  between  the 
parties,  by  which  the  whole  property  is  made  subject  to  sale  for  payment 
of  the  debt,  whenever  a  decree  is  obtained.  The  Court  remark  :  —  "If  the 
mort^afor  goes  on  and  makes  preparations  for  a  crop,  he  does  it  with  a  full 
knowleilge  that  the  land  with  the  crop  is  subject  to  be  sold,  if  the  decree  be 
obtained  before  he  severs  it.  Nor  does  he  lose  anything  by  this ;  for  the 
crop  on  the  land  enhances  the  price.  If,  by  this  increase,  the  debt  be  over- 
paid, he  gets  the  overplus ;  if  not,  still  the  full  value  of  his  labor  goes,  as  he 
had  agreed  it  should  go,  to  the  payment  of  the  debt."  Crews  v.  Pendleton, 
1  Leigh,  297,  305.  In  the  case  of  Keech  v.  Hall,  it  was  intimated,  but  not 
exprt'ssiy  decided,  that  the  lessee  of  a  mortgagor,  evicted  by  the  mortgagee, 
would  be  entitled  to  emblements.  But  it  is  said,  (Coote,  393,  394  ;  Co.  Lit. 
55  b;  Liford's  case,  11  Co.  51,)  that  both  upon  legal  and  equitable  princi- 
ples he  is  not  so  entitled,  being  evicted  by  paramount  title ;  and  although 
the  law  will  not  quoad  actionem  make  a  lessee  who  comes  in  by  title  punish- 
able as  a  trespasser,  yet  quoad  proprieiatem  the  regress  of  the  disseisee  re- 
vests the  property  as  well  for  the  emblements  as  for  the  freehold  itself,  and 
equally  against  the  feoffee  or  lessee  of  the  disseisor,  as  against  the  disseisor 
himself.  The  rule  and  reason  of  the  law  is,  that  after  the  regress  of  the 
disseisee,  the  law  adjudges  that  the  freehold  has  continued  in  him;  which 
rule  and  reason  extends  as  well  to  the  emblements  as  to  the  freehold  ;  and 
although  the  act  of  the  disseisor  may  alter  a  man's  action,  yet  his  act  cannot 
take  away  his  action,  property,  or  right.  See  Cassidy  v.  Ehodes,  12  Ohio, 
88.  Where,  before  foreclosure  of  a  mortgage,  the  mortgagor  agreed  with 
the  defendant  that  he  should  crop  the  land  on  shares,  to  which  the  mortga- 
gee afterwards  assented  ;  the  foreclosure  purchaser  cannot  maintain  replevin 
for  the  crops.     Congden  t>.  Sanford,  Hill  &  Den.  196. 


en.  IX.]       ESTATE    OP   THE   MORTGAGOR,   IN   POSSESSION.  183 

Lord  Mansfield's  remark  in  Moss  v.  Gallimore,^  (d)  that  he 
is  only  like  a  tenant  at  will,  and  that  nothing  is  more  apt  to 
confound  than  a  simile,  ^eems  equally  applicable  to  all  the 
other  proximate  relations  above  referred  to;  neither  of  which 
in  all  respects  expresses  the  rights  and  duties  of  the  mort- 
gagor as  occupant  of  the  estate.  For  example,  he  is  not  a 
receiver,  because,  as  stated  by  the  Lord  Chancellor,  in  Wilson 
ex  parte,^  the  mortgagee  cannot  call  him  to  account  for  past 
rents.  It  has  been  well  said,  however,  by  Judge  Buller,  in 
Birch  V.  Wright,^  that  a  mortgagor  and  mortgagee  are  char- 
acters as  well  known,  and  their  rights,  powers,  and  interests, 
as  well  settled,  as  any  in  the  law.  The  possession  of  the 
mortgagor  is  the  possession  of  the  mortgagee,  and  as  to  the 
inheritance,  they  have  but  one  title  between  them." 

4.  With  regard  to  the  points  suggested  by  Judge  Buller, 
Mr.  Coote  remarks  :  *  —  "  This  view  of  the  question  does 
not  meet  the  difficulty,  for  the  rights,  powers,  and  interests  of 
mortgagor  and  mortgagee,  are  in  many  instances  grounded 
on  their  respective  estates  in  the  land ;  and,  therefore,  we  are 
still  driven  back  to  the  original  question,  what  are  those 
estates  ?  The  common  law  recognizes  no  such  estate  as  that 
of  mortgagor  or  mortgagee,  independently  of  some  other 
known  estate  or  interest  in  the  land ;  for  the  estates  both  of  i 
the  mortgagor  and  mortgagee  are  of  a  compound  nature, 
partaking  partly  of  legal  and  partly  of  equitable  rights  ;  and 
it  is  difficult  to  perceive  in  what  manner  these  compound 
estates  can  as  such  be  regarded  in  a  court  of  law,  although 
possession  of  the  mortgagor  may  confer  on  him  certain  priv- 

1  Dougl.  282;  Miner  v.  Stevens,  1  ^  2  Ves.  &  B.  253. 

Cush.  485.  3  1  T.  R.  383. 

*  Coote,  374. 


(d)  In  the  same  case,  Bailer,  J.,  says,  with  reference  to  a  remark  upon 
the  same  subject  in  Keech  v.  Hall :  —  "  Expressions  used  in  particular  cases 
are  to  be  understood  with  relation  to  the  subject-matter  then  before  the 
Court." 


1S4  THE   LAW   OF   MORTGAGES.  [CH.   IX. 

ileges  under  the  statute  law  and  poor  laws.  In  addition  to 
which  it  may,  under  circumstances,  become  essential  to  as- 
certain, whether  at  common  law  there  is  any,  and  what  priv- 
ity of  estate  between  the  parties ;  for  if  the  mortgagor  in 
possession  may  be  considered  as  tenant  at  will,  or,  under  the 
agreement  for  possession,  as  tenant  for  years,  to  the  mort- 
gagee, there  will  be  sufficient  privity  of  estate  between  them 
to  admit  of  an  enlargement  by  release  alone,  which  will  not 
be  the  case  if  he  is  to  be  considered  as  tenant  at  sufferance, 
or  an  agent,  or  receiver.  So  long  as  the  mortgagor  is  in  pos- 
session of  the  land,  and  the  legal  ownership  is  in  the  mort- 
gagee, there  must  subsist  a  tenancy  of  some  sort  between 
the  parties  ;  or  otherwise  the  mortgagor  must  be  a  trespasser, 
for  the  law  of  England  recognizes  no  possession  independent 
of  a  tenancy,  either  to  the  lord  paramount  or  a  mesne  lord. 
The  mortgagor  in  possession  must  hold  of  some  one,  and  to 
say  that  his  possession  is  that  of  a  mortgagor,  is  in  fact  leav- 
ing the  question  undecided." 

5.  Upon  the  particular  point,  whether  the  mortgagor  is  a 
tenant,  in  the  case  of  Doe  v.  Maisey,^  Lord  Tenterden  denied 
that  the  mortgagor  is  a  tenant,  or,  if  a  tenant,  anything  more 
than  a  tenant  at  sufferance  ;  but  held,  that  he  holds  by  a  pe- 
culiar tenure,  and  may  be  treated  as  a  tenant  or  trespasser 
at  the  election  of  the  mortgagee.  The  weight  of  authority, 
however,  seems  to  justify  this  application  of  the  word  ten- 
ant. Thus  it  is" said,  he  is  in  possession  of  premises,  whereof 
the  legal  title  and  interest  is  in  another,  and  by  the  permis- 
sion and  sufferance  of  the  latter.  Therefore  a  declaration, 
describing  him  as  tenant,  will  be  sustained  by  producing  a 
mortgage  deed,  A  court  of  law  knows  nothing  about  mort- 
gagor and  mortgagee.  It  looks  at  the  legal  tenant.  The 
mortgagor  has  actual  possession,  and  the  mortgagee  the  legal 
estate,  and  at  law  the  tenancy  cannot  be  disputed.  More 
especially  is  the  mortgagor  to  be  regarded  as  a  tenant,  so  far 
as  is  necessary  to  sustain  an  action  by  the  mortgagee  against 

1  8  B.  &  Cress.  767. 


CH.  IX.]        ESTATE    OE   THE   MORTGAGOR,   IN   POSSESSION.  185 

a  trespasser.^  So  in  Partridge  v.  Bere,^  the  declaration  al- 
leged, that  the  premises  were  in  the  possession  and  occupa- 
tion of  Turner,  as  tenant  to  the  plaintiff,  the  reversion  be- 
longing to  him.  It  appeared  that  Turner,  being  tenant  for 
life,  mortgaged  to  the  plaintiff  for  years,  if  he  should  live  so 
long,  and  that  Turner  had  since  occupied  and  paid  the  inter- 
est. It  was  contended  that  the  relation  of  landlord  and  ten- 
ant did  not  exist,  and  therefore  the  declaration  was  not  sus- 
tained. Per  Curiam  :  —  "  Here  the  mortgagor  was  in  actual 
possession  of  the  mortgaged  premises,  by  sufferance  of  the 
mortgagee,  who  has  the  legal  title  vested  in  him.  The  for- 
mer, therefore,  is  a  tenant,  within  the  strictest  definition  of 
that  word."  (e)  So  Lord  Abinger  says  :  ^ —  "  If  a  mortgagor 
be  not  tenant  to  the  mortgagee,  in  what  relation  does  he  stand  ? 
He  is  not  a  trespasser ;  he  is  not  a  servant,  because  the 
mortgagee  is  not  in  possession ;  the  ordinary  terms  known  to 
the  law  are  a  mortgagee  in  possession  and  out  of  possession. 
If  there  be  a  stipulation  that  he  shall  be  allowed  to  remain 
in  possession  for  a  time,  by  the  very  terms  of  the  deed  he  is 
a  tenant  for  that  time,  and  is  in  possession  for  a  term ;  if  he 
continues  in  possession,  and  holds  over,  he  continues  on  the 
same  terms  as  during  that  time."  So  the  doctrine  of  estoppel, 
applicable  to  tenancy,  is  also  held  to  apply  to  the  mortgagor, 
after  the  laiv  day,  as  a  quasi  tenant.'*  (/)     And  a  conveyance, 

1  Per  Sir  Thomas  Plumer,  M.  R.        3  Hitchman  v.  Walton,  4  Mees.  & 
Cholmondeley  v.  Clinton,  2  Jac.  &  W.     "W.  413. 

183.  *  Wires  v.  Nelson,  26  Verm.  13. 

2  5  B.  &  A.  604. 


(e)  In  Doe  v.  Giles,  5  Bing.  426,  Best,  C.  J.,  remarks  upon  the  above 
case  :  "  This  was  not  a  case  between  the  mortgagee  and  the  mortgagor,  in 
which  the  courts  were  called  upon  to  decide  what  are  the  rights  of  the  one 
against  the  other.  The  defendant  in  that  case  was  a  wrongdoer,  and  had, 
therefore,  no  right  to  object  to  the  plaintiff  calling  himself  a  reversioner  as 
long  as  he  permitted  the  mortgagor  to  be  in  possession." 

(/)  And,  if  he  executes  two  or  more  successive  mortgages  to  different 
persons,  he  is  as  much  estopped  to  deny  the  title  of  the  subordinate  mortga- 
gees, as  of  the  first.  His  deed  estops  him  from  denying  the  title  of  either, 
16* 


186  THE   LAW   OF  MORTGAGES.  [CH.   IX. 

with  a  bond  of  defeasance,  constitutes  a  mortgage,  notwith- 
standing an  agreement  that  the  mortgagor  may  retain  pos- 
session and  pay  a  rent  equivalent  to  the  interest  of  the 
debt.i 

6.  And  it  is  equally  common  to  speak  of  the  mortgagor  as 
a  tenant  at  ivill.  Thus  in  the  case  of  Groton  v.  Boxborough, 
Parsons,  C.  J.,  says  :  —  "As  between  the  mortgagee  and  mort- 
gagor, and  those  claiming  under  them  respectively,  it  must  be 
admitted  that  the  legal  freehold  passed  by  the  mortgage  ;  the 
mortgagor  being  a  tenant  at  ivill  to  the  mortgagee,  who  might 
enter  and  take  possession  at  his  pleasure,  without  being 
obliged  by  law  to  give  the  mortgagor  notice  to  quit."  ^  So  in 
a  later  case  in  the  same  State,  it  is  said,  "  a  mortgagor,  as 
against  the  mortgagee,  stands  as  tenant  at  will."  ^  And  in 
Wilder  v.  Houghton,*  which  was  an  action  by  a  mortgagee 
to  recover  from  an  assignee  of  the  mortgagor  the  mesne 
profits  received  by  him  since  the  commencement  of  a  suit  to 
foreclose,  Parker,  C.  J.,  remarked  :  —  "  The  defendant  stands 
in  the  place  of  the  mortgagor,  so  that  the  question  submit- 
ted is  the  same  as  if  the  present  action  were  between  the 
mortgagee  and  mortgagor  ;  and  in  this  view  it  must  be  con- 
sidered an  experiment,  no  such  action  having  been  hitherto 
brought,  either  in  this  country  or  in  England,  as  far  as  we 
can  discover  from  the  books."     The  mortgagor  "  is,  it  is  true, 

1  Woodward  v.  Pickett,  8  Gray,  617.        *  i  pjck.  88,  89.     See  Morey  v.  Mc- 

2  6  Mass.  52,  53.  Guire,  4  Verm.  327  ;  LuUw.  Matthews, 
8  Per  Shaw,  C.  J.,  Van  Deusen  v.     19,  322 ;  Pierce  v.  Brown,  24,  165. 

Frink,  15  Pick.  457. 


or  setting  up  an  outstanding  title  in  a  stranger,  or  of  defending  himself  by 
means  of  that  title,  until  he  has  first  hond  fide  surrendered  the  possession. 
Wires  V.  Nelson,  26  Verm.  13.  Where  tenants  of  the  mortgagor  and  the 
mortgagor  himself  hold  in  severalty  portions  of  the  mortgaged  premises,  the 
mortgagee  may  recover  a  joint  judgment  for  the  rents  and  profits  of  the 
whole  against  them  all,  unless  they  separate  in  their  defence  by  a  disclaimer. 
The  sulwrdinate  mortgagee  may  recover  the  rents  and  profits  from  the  time 
notice  is  given  to  the  mortgagor,  and,  when  no  notice  is  given  by  the  prior 
mortgagee,  from  the  service  of  his  writ  or  notice.     Ibid. 


CH.   IX.]-    ESTATE    OF   THE   MORTGAGOR,   IN   POSSESSION.  187 

considered  as  a  mere  tenant  at  will,  and  according  to  our 
practice,  and  to  the  decision  of  the  Court  of  King's  Bench, 
reported  in  Douglas,  21,  he  may  be  ejected  without  any  no- 
tice to  quit.  Yet  he  is  in  many  respects  the  owner  of  the 
land,  and  when  left  in  possession,  there  must  be  an  implied 
understanding  that  he  is  to  occupy  and  improve  in  the  same 
manner  as  before  the  execution  of  his  mortgage.  It  is  true, 
that  when  the  estate  mortgaged  is  not  full  security  for  the 
debt,  the  profits  would  be  useful  to  the  mortgagee,  as  a  means 
of  payment ;  but  to  obtain  them  he  should  enter  early,  or 
bring  his  writ  of  entry,  \\^hich  he  may  do  immediately  upon 
the  execution  of  the  deed  ;  if  he  chooses  to  lie  by,  and  suffer 
the  mortgagor  to  keep  possession,  he  consents  that  the  inter- 
mediate profits  may  be  received  by  him,  and  held  without 
account." 

7.  It  has  been  held,  however,  in  a  late  case,  in  Massachu- 
setts, that  a  mortgagee  who  has  entered  for  foreclosure  can- 
not maintain  the  landlord  and  tenant  process  against  the 
mortgagor.  The  Court  remark:  —  "Although,  in  a  loose 
sense,  a  mortgagor  in  possession  is  said  to  be  tenant  at  will 
of  the  mortgagee,  yet  he  is  not  within  the  reason  or  the  let- 
ter of  the  Rev.  Stats,  ch.  104,  §  2.  He  is  not  a  lessee,  or 
holding  under  a  lessee,  or  holding  demised  premises  without 
right,  after  the  determination  of  the  lease.  The  remedies  of 
a  mortgagee  are  altogether  of  a  different  character,  clearly 
marked  out  by  law."  ^  So,  where  a  mortgagee  recovered  a 
conditional  judgment,  and  took  possession  under  an  execu- 
tion, but  did  not  eject  the  mortgagor,  who  agreed  to  quit 
peaceably  whenever  the  mortgagee  should  lease  the  premi- 
ses ;  held,  a  third  person,  receiving  a  written  lease  from  the 
mortgagee,  could  not,  upon  the  mortgagor's  refusal  to  quit, 
maintain  this  process  against  him.^ 

8.  An  agreement  in  the  mortgage,  that  the  mortgagor  shall 
be  tenant  at  will,  constitutes  a  strict  tenancy  at  will,  though 
an  annual  rent  be  reserved.     And  the  relation  of  landlord 

1  Hastings  v.  Pratt,  8  Cush.  121-123.  2  Larned  v.  Clark,  8  Cush.  29. 


188  THE   LAW   OF   MORTGAGES.  •  [CH.  IX. 

and  tenant  may  be  created  by  a  clause  to  that  effect,  though 
the  mortgagor  alone  execute  the  deed ;  and  the  subsequent 
occupation  of  the  mortgagor  will  be  held  to  be  under  the 
tenancy,  though  the  receipts  for  half-yearly  payments  of  rent 
are  given  in  the  name  of  interest.^  So  a  mortgage  contained 
a  power  of  sale,  and  then  a  proviso  and  covenant,  by  the 
mortgagee,  that  no  sale  should  take  place,  nor  any  means  of 
obtaining  possession  of  the  premises  be  taken,  until  the  ex- 
piration of  twelve  calendar  months  after  written  notice  of 
such  intention.  The  mortgagee  also  covenanted  for  the 
mortgagor's  quiet  enjoyment  as  his  tenant  at  will,  on  pay- 
ment of  a  yearly  rent  in  lieu  of,  and  as  interest  upon  the 
mortgage-money.  The  mortgagee  remained  in  possession, 
but  no  livery  of  seisin  was  made  to  the  mortgagor.  Before 
suit  commenced,  there  was  a  demand  of  possession,  but  no 
notice  to  quit.  Held,  the  deed  created  a  tenancy  at  will,  and 
the  mortgagee  or  his  assignee  might  maintain  ejectment.^ 
So  the  mortgagor  agreed  to  become  tenant  "  henceforth  at  . 
the  will  and  pleasure  of  the  mortgagee,  at  the  yearly  rent  of, 
&c.,  payable  quarterly."  Held,  a  tenancy  at  will,  not  con- 
verted into  a  tenancy  from  year  to  year  by  occupation  for 
two  years,  and  payment  of  rent.^ 

9.  The  question,  as  to  the  precise  nature  of  the  relation 
between  a  mortgagor  in  possession  and  his  mortgagee,  has 
generally  been  raised,  either  in  connection  with  a  claim  for 
rent,  or  a  resort  to  legal  process  for  the  purpose  of  ejecting 
the  mortgagor  from  the  premises  ;  and  more  especially  with 
the  inquiry,  whether,  like  ordinary  tenants  at  will,  he  is  en- 
titled to  notice  to  quit,  before  bringing  ejectment  against  him. 

10.  INIr.  Coote  says,  where  there  is  an  agreement  for  the 
mortgagor's  possession  till  default,  and  such  default  occurs, 
and  he  remains  in  possession  without  any  new  agreement ; 
or  if  the  mortgage  contains  no  such  agreement,  he  may  be 
treated  as  a  tenant  at  sufferance  or  a  trespasser,  though  the 

1  C<).)te,  377.  8  Doe  v.  Cox,  17  L.  J.  3.     See  Free- 

'■'  1)1X10  V.  DaTies,  8  Eng.  Law  &  man  v.  Edwards,  Exch.  17,  L.  J.  258 ; 
Eq-  &10-  Chapman  v.  Beecham,  3  Q.  B.  373. 


CH.  IX.]      ESTATE   OP   THE   MORTGAGOR,   IN    POSSESSION.  189 

mortgagee  have  received  interest ;  and  wherever  there  is  no 
agreement  for  his  occupation  till  a  certain  period,  his  contin- 
uance in  possession,  if  with  the  mortgagee's  consent,  must 
be  considered  as  a  species  of  tenancy  at  will,  though  without 
two  of  its  chief  incidents  ;  namel)^,  emblements,  and  the  right 
to  a  determination  of  the  will  before  bringing  ejectment.  It 
must  be  admitted,  however,  to  be  doubtful,  from  the  cases, 
whether  any  tenancy  exists  between  the  parties ;  though 
their  relative  rights  are  well  ascertained,  and  the  mortgagee 
may,  as  against  strangers,  treat  the  mortgagor  as  his  ten- 
ant.i  (g) 

11.  It  has  been  held  in  recent  cases,  that  the  mortgagee 
may  evict  the  mortgagor,  though  the  mortgage  provides  that 
the  latter  shall  be  tenant  at  a  certain  rent ;  if  there  is  also 
the  usual  power  of  entry  on  default  of  payment.^  Thus  in 
Doe  V.  Tom^  it  was  held,  that,  where  the  mortgagor  becomes 
tenant  to  the  mortgagee  at  a  rent,  with  the  right  of  imme- 
diate entry  upon  default ;  the  latter  may  eject  him,  upon 
default,  without  demand  of  payment  or  notice  to  quit. 
So,  by  an  indenture  of  mortgage,  the  mortgagor  released 
in  fee  upon  certain  trusts  ;  and  demised  other  lands  for 
ninety-nine  years  upon  certain  trusts ;  to  be  void,  on  pay- 
ment of  a  certain  sum  upon  such  a  day.  If  not  paid,  the 
mortgagee,  after  a  month's  notice,  might  take  possession,  and, 
whether  in  or  out  of  possession,  lease  and  sell  the  lands ;  and 
should  hold  the  rents  and  profits  and  the  proceeds  of  sale  in 
trust  to  pay  the  debt  and  interest,  and  then  in  trust  for  the 
mortgagor.  The  mortgagee  covenanted  not  to  sell  or  lease 
till  after  the  expiration  of  a  month's  written  notice,  demand- 
ing payment ;  and  that  he  would  at  any  time  before  sale 

1  Coote,  377,  378.     See  Hitchman  v.        2  poe  v.  Tom,  4  Q.  B.  Hep.  615 ; 

Walton,  4  Mees.   &  W.  414;  Ing  v.     v.  Olley,  12  Ad.  &  Ell.  481. 

Cromwell,  4  Md.  81.  3  4  q.  b.  615. 


(g)  To  enable  a  mortgagee  to  dislraiii  on  the  mortgagor  in  possession,  the 
mortgage  should  contain  an  agreement  to  that  eflfect,  and  state  a  certain 
sum  by  way  of  rent.     Coote,  403. 


190  THE   LAW    OF   MORTGAGES.  [CH.  IX. 

reconvey  and  reassign,  upon  payment  of  the  debt  and  costs. 
The  mortgagor  covenanted  to  pay  principal  and  interest.  The 
freehold  huids  to  be  the  fund  primarily  liable,  without  prej- 
udice to  the  right  of  resorting  to  the  others.  The  mortgagor 
remaining  in  possession,  held,  ejectment  would  lie  against 
him  for  all  the  lands,  without  notice,  after  the  expiration  of 
the  time  mentioned.^  So,  in  the  case  of  Doe  v.  Giles,^  it  was 
provided  in  a  mortgage  deed,  that,  if  the  debt  remained  un- 
paid for  a  certain  time,  the  mortgagee  might  enter,  and,  if 
not  paid  within  thirty  days  from  the  day  fixed  for  payment, 
he  might  proceed  to  a  sale  of  the  estate  without  the  concur- 
rence of  the  mortgagor.  Two  days  after  that  on  which  the 
mortgagee  had  a  right  to  enter  for  non-payment,  and  before 
payment  of  any  interest,  the  mortgagee  brings  ejectment, 
without  any  previous  demand  of  possession.  Held,  the  ac- 
tion was  maintainable.  Best,  C.  J.,  says,^  (after  the  day 
fixed  for  payment,)  "  the  possession  belongs  to  the  mortga- 
gee. And  there  is  no  more  occasion  for  his  requiring  that 
the  estate  should  be  delivered  up  to  him  before  he  brings  an 
ejectment,  than  for  a  lessor  to  demand  possession  on  the  de- 
termination of  a  term.  If  this  situation  exposes  mortgagors 
to  any  hardship,  they  must  guard  against  it  by  an  alteration 
in  the  terms  of  the  mortgage  deeds.  Mortgagees,  however, 
do  not  find  it  to  their  advantage  to  enter  upon  the  estates,  if 
they  can  get  their  interest  regularly  paid  ;  for,  from  the  time 
that  they  get  possession,  their  situation  is  far  from  desirable, 
from  the  constant  state  of  preparation  that  they  must  be  in 
to  account  to  the  mortgagor,  whenever  he  shall  be  ready  to 
discharge  the  mortgage  debt." 

12.  The  doctrine  upon  this  subject  in  the  United  States 
has  been  somewhat  various. 

13.  In  the  case  of  Rockwell  v.  Bradley,*  in  Connecticut,  it 
was  held,  that  a  mortgagee  may  maintain  ejectment  against 
the  mortgagor,  without  a  demand  or  notice  to  quit.     Three 

>  Doe  V.  Day,  2  Ad.  &  Ell.  (N.  S.)  »  5  Bing.  427,428. 

14J.  *  2  Conn.  1. 

*  6  Bing.  421. 


CH.  IX.]      ESTATE   OF   THE   MORTGAGOR,   IN   POSSESSION.  191 

judges  out  of  eight,  however,  dissented  j  and  some  of  the 
others  admitted,  that  if,  by  the  pleadings,  the  defendant  had 
relied  upon  a  license  from  the  plaintiff,  such  license  might 
well  have  been  inferred  from  the  fact  of  his  being  left  in  pos- 
session, and  other  circumstances  of  the  case.  The  dissent- 
ing judges  founded  their  opinion  upon  the  facts,  that  the 
leading  cases  cited  in  favor  of  the  action  were  suits  against 
an  assignee  or  lessee  of  the  mortgagor ;  that  by  the  dictum 
of  Lord  Mansfield  in  Keech  v.  Hall,  as  to  the  mortgagor's 
possessing  the  premises  at  will  "  in  the  strictest  sense," 
nothing  more  is  meant  than  a  tenancy  at  will  in  the  original 
sense,  as  distinguished  from  a  tenancy  from  year  to  year,  re- 
quiring six  months'  notice  ;  and  that  a  tenant  at  ivill  cannot 
be  treated  as  a  disseisor  without  some  notice  to  quit.  It  was 
further  remarked,  that  a  mortgagor  left  in  possession  is  a 
strict  tenant  at  will  or  at  sufferance,  by  an  implied  agreement 
or  license,  unless  the  contrary  appears  ;  that  possession  of  the 
mortgagor  for  fifteen  years  does  not  bar  the  mortgagee's  en- 
try under  the  statute  of  limitations,  and  that  the  mortgagee 
may  transfer  or  devise  his  interest  during  such  possession  ; 
all  showing  it  not  to  be  adverse. 

14.  In  the  subsequent  case  of  Wakeman  v.  Banks,^  the 
same  decision  was  made  by  the  Court,  with  a  similar  dissent 
on  the  part  of  several  judges.  It  was  further  distinctly  held, 
that  the  execution  of  a  mortgage,  and  the  subsequent  posses- 
sion of  the  mortgagor,  are  not  facts  from  which  it  is  com- 
petent for  a  jury  to  infer  a  license  to  remain  in  possession. 
,  Swift,  C.  J.,  points  out  the  following  characteristics  of  a 
mortgagor,  which  do  not  apply  to  a  tenant  at  will.  He  is 
not  liable  to  an  action  of  waste  ;  he  may  dispose  of  the 
whole  or  a  part  of  the  estate  ;  it  descends  to  his  heirs ;  he  is 
considered  the  owner,  in  all  respects,  except  for  payment  of 
the  debt.  The  right  to  bring  ejectment,  without  notice  to 
quit,  is  compatible  with  the  nature  of  the  estate ;  for  it  is 
only  a  security  for  a  debt ;  and  it  is  a  well-known  principle 
that  a  suit  may  be  brought  against  a  debtor,  without  notice. 

1  2  Conn.  445. 


192  THE   LAW    OF   MORTGAGES.  [CH.  IX. 

15.  In  Vermont,  the  mortgagee  may  enter  after  breach  of 
condition.^  If  he  suffers  the  mortgagor  to  remain  in  posses- 
sion, the  latter  is  tenant  by  sufferance  merely,  and  may  be 
evicted  without  notice.  So,  though  the  mortgagee  has  given 
him  a  lease  for  years,  yet,  at  the  expiration  of  the  term,  his 
former  liabilities  revive  and  continue,  and  he  will  be  held 
tenant  by  sufferance  merely.  And  if,  after  the  expiration  of 
the  term,  he  lease  by  parol  to  a  third  person,  such  third  per- 
son can  stand  in  no  better  condition  than  the  mortgagor,  as 
respects  the  mortgagee.^ 

16.  In  North  Carolina,  the  mortgagee  may  maintain  eject- 
ment without  demand  or  notice.^  In  New  Hampshire,  he 
may  treat  any  one  found  in  possession,  whose  title  is  not 
good  against  him,  as  a  wrongdoer  and  disseisor,  at  his  elec- 
tion.* 

17.  In  New  York  it  has  been  held,  that  the  mortgagee 
cannot  maintain  ejectment  against  the  mortgagor,  without  a 
previous  notice  to  quit.  So  it  has  been  held  in  a  later  case 
in  the  same  State,  that,  where  a  mortgage  is  made  to  secure 
a  debt,  and  the  mortgagor  left  in  possession,  there  is  an  im- 
plied agreement  that  he  shall  continue  to  hold  possession. 
His  possession  being  lawful,  he  cannot  be  treated  as  a  tres- 
passer, and  sued  in  ejectment  without  notice.  But  it  is 
otherwise  with  a  purchaser  from  the  mortgagor,  because  the 
sale  itself  is  an  act  of  disloyalty,  and  the  mortgagor  a  dis- 
seisor. Notice  is  not  requisite,  without  privity  of  contract 
or  estate.  But  such  privity  exists  between  an  assignee  of 
the  mortgage  and  the  mortgagor.^  The  Court  remark  upon, 
this  subject  as  follows :  —  "  I  do  not  think  it  necessary  to  go 
through  the  English  cases,  which  are  not  sufficiently  uniform 
to  be  of  much  service,  to  ascertain  whether  a  mortgagor  be 

1  Wilson  V.  Hooper,  13  Verm.  653.       Emerson  v.  Thompson,  2,  473 ;  Polk 

2  Stedman  v.  Gasset,  18  Vt.  346.  v.  Henderson,  9  Yerg.  318 ;  Beeley  v. 
8  Fuller  r.  Wadsworth,  2  Ired  263.      Wallace,    16  S.  &  R.  245;  Knaub  v. 

*  Wheeler  v.  Bates,  1  Fost.  460.  Essick,  2  Watts,  282;  iJexter  v.  Phil- 

*  Jackson  i-.  Hopkins,  18  Johns.  488 ;  lips,  1  Sumn.  116;  Bower  v.  Crane,  1 
Lane  i-.  Kintr,  H  Wend.  584 ;  Thunder  N.  H.  169  ;  Chapman  v.  Armistead, 
I',  lielehcr,  :5  E.  449.  .See  Welch  v.  4  Munf.  382;  Jackson  v.  Myers,  11 
Adams,  1  Met.  494 ;  Estes  v.  Cook,  22  Wend.  537. 

Tick.  296 ;  French  v.  Fuller,  23,  304  j 


CH.  IX.]      ESTATE    OF   THE   MORTGAGOR,   IN   POSSESSION.  193 

a  tenant  at  sufferance,  or  at  will,  or  from  year  to  year.  It  is 
sufficient  for  my  purpose,  that  he  occupies  with  the  mortga- 
gee's consent,  and  that  by  a  perfect  understanding  between 
them  he  uses  the  premises  as  his  own.  Most  commonly  his 
interest  is  much  greater  than  that  of  the  mortgagee,  and  in 
practice,  we  know  that  no  tenant  at  will,  for  years,  or  even 
for  life,  exercises  such  unlimited  dominion  over  land,  as  the 
mortgagor.'  It  comports  then  neither  with  reason  nor  feel- 
ing, to  permit  him  to  be  put  to  the  expense  and  vexation  of 
an  ejectiTient,  without  a  previous  notice  to  quit.  This  is  no 
hardship  on  the  mortgagee,  while  a  contrary  practice  may  be 
much  abused,  in  a  country  where  so  many  thousand  estates 
are  held  in  this  way.  Without  any  nice  disquisition  of  the 
rights  and  duties  of  particular  tenants,  (which  may  perplex, 
but  cannot  elucidate  the  question,)  I  am  ready  to  say,  that 
no  person  who  holds  land  by  another's  consent,  for  an  indef- 
inite period,  ought  ever  to  be  evicted  by  ejectment,  at  the 
suit  of  such  party,  without  a  previous  notice  to  quit.  This 
should  especially  be  required  in  all  cases  of  mortgages,  be- 
cause the  mortgagor  may  not  only  surrender  the  possession 
of  the  land,  but  may  protect  himself  against  an  action  by 
payment  of  the  money  due.  The  case  of  Keech  v.  Hall,  in 
Douglas,  21,  is  not  an  authority  here  ;  and  it  is  enough  to  say, 
that  we  may  be  permitted  to  regulate  a  mere  matter  of  prac- 
tice, even  in  opposition  to  what  may,  under  other  circum- 
stances, be  deemed  a  better  course  in  Westminster  Hall.  If 
a  notice  be  requisite,  to  be  reasonable,  it  should  be  delivered 
six  calendar  months  previous  to  the  service  of  a  declaration."^ 
18.  The  question  above  considered,  as  to  the  mortgagee's 
right  of  possession,  and  the  exact  nature  of  his  title,  has 
often  arisen,  in  consequence  of  the  mortgagor's  making  a 
lease  of  the  premises  to  some  third  person,  or  allowing  such 
person  to  occupy  them  as  his  tenant.  The  general  rule  upon 
this  subject  is,  that  a  mortgagor  in  possession  cannot  make 


1  Per  Livingston,  J.,  Jackson  v.  Laughhead,  2  Johns.  75.     Three  other  jus- 
tices concurred.     One  dissented. 

VOL.   I.  17 


194  THE    LAW    OF    MORTGAGES.  [CH.    IX. 

a  lease,  binding  upon  the  mortgagee.  This  principle  seems 
to  be  well  established  in  England,  and  is  a  fortiori  to  be  con- 
sidered in  force  in  the  United  States,  where  mortgages,  as 
well  as  other  conveyances  of  the  freehold,  are  uniformly 
registered  or  recorded,  and  therefore  a  subsequent  lessee  is 
always  chargeable  with  express  or  implied  notice  of  the 
mortgagee's  title.  Without  registration,  a  mortgage  would 
be  invalid,  as  well  against  a  lease,  as  any  other  subsequent 
transfer.  (//) 

19,  The  leading  case  upon  this  subject  is  that  of  Keech  v. 
Hall,'  in  which  Lord  Mansfield  gave  the  following  opinion  :  — 
"  This  is  an  ejectment  brought  for  a  warehouse  in  the  city, 
by  a  mortgagee,  against  a  lessee,  under  a  lease  in  writing  for 
seven  years,  made  after  the  date  of  the  mortgage,  by  the 

1  Dougl.  21 ;  Fitchburg,  &c.  v.  Melven,  15  Mass.  270. 


(//)  In  a  late  and  important  case  of  the  mortgage  of  a  railroad  to  trustees, 
for  tlie  benefit  of  bondholders,  the  mortgage  provided,  that  the  mortgagors 
might,  till  breach  of  condition,  remain  in  possession  ;  and  that  they  might 
improve  or  lease  the  properly ;  but  further,  that,  in  a  certain  time  after 
breach  of  condition,  the  mortgagee  might  enter,  and  apply  the  proceeds  of 
the  property  to  the  debt,  or  sell  it  at  auction.  Held,  a  lease  made  by  the 
mortgagor,  and  the  power  to  lease,  terminated  with  a  breach  of  condition, 
and  a  subsequent  ratification  was  invalid.  Haven  v.  Adams,  4  Allen,  80. 
The  lease  of  a  mortgagor  is  held  to  be  good  as  to  all  but  the  mortgagee ; 
and  he  only  can  avoid  it.  McCall  v.  Lenox,  9  S.  &  R.  308;  Hutchinson  v. 
Bearing,  20  Ala.  798.  If  the  mortgagor  lease,  with  the  mortgagee's  consent, 
and  the  lessee  enter,  claiming  under  no  other  title  ;  he  is  not  a  disseisor,  but, 
on  payment  and  acceptance  of  rent,  a  tenant  at  will.  So  also  is  the  mort- 
gagor, if  he  reenter  after  the  lease  expires.  Powsely  v.  Blackman,  Cro.  Jac. 
659.  In  Bacon  v.  Bowdoin,  22  Pick.  401,  it  was  held,  that,  if  a  mortgagor 
lease  for  years,  the  lessee  may  redeem ;  more  especially  since  the  provision 
of  the  Revised  Statutes,  ch.  107,  §  13,  that  any  person  lawfully  claiming  or 
holding  under  the  mortgagor  may  redeem.  See  Barelli  v.  Schymanski,  14 
La.  An.  47.  If  the  mortgagor,  having,  after  condition  broken,  taken  from 
the  mortgagee  a  lease  for  years,  convey  to  a  third  person  during  such  ten- 
ancy, the  mortgagee  may  still  consider  him,  at  the  end  of  his  term,  to  be  in 
possession  as  mortgagor,  and  not  as  tenant  from  year  to  year,  and  evict  him 
at  any  time  without  notice.     Stedman  v.  Gassett,  18  Verm.  346. 


CH.  IX. J      ESTATE   OF   THE    MORTGAGOR,    IN   POSSESSION.  195 

mortgagor,  who  had  continued  in  possession.  The  lease  was 
at  a  rack-rent.  The  mortgagee  had  no  notice  of  the  lease, 
nor  the  lessee  any  notice  of  the  mortgage.  The  question  is, 
whether,  by  the  agreement  understood  between  mortgagors 
and  mortgagees,  which  is,  that  the  latter  shall  receive  inter- 
est, and  the  former  keep  possession,  the  mortgagee  has  given 
an  implied  authority  to  the  mortgagor  to  let  from  year  to 
year,  at  a  rack-rent ;  or  whether  he  may  not  treat  the  defend- 
ant as  a  trespasser,  disseisor,  and  wrongdoer.  No  case  has 
been  cited,  where  this  question  has  been  agitated,  much  less 
decided.  The  only  case  at  all  like  the  present,  is  one  that 
was  tried  before  me  upon  the  home  circuit  (Belchier  v.  Col- 
lins) ;  but  there,  the  mortgagee  was  privy  to  the  lease,  and 
afterwards,  by  a  knavish  trick,  wanted  to  turn  the  tenant  out. 
The  idea,  that  the  question  may  be  more  proper  for  a  court 
of  equity,  goes  upon  a  mistake.  It  emphatically  belongs  to 
a  court  of  law,  in  opposition  to  a  court  of  equity  ;  for  a  les- 
see at  a  rack-rent  is  a  purchaser  for  a  valuable  consideration, 
and  in  every  case  between  purchasers  for  a  valuable  consid- 
eration, a  court  of  equity  must  follow,  not  lead,  the  law. 
On  full  consideration,  we  are  all  clearly  of  opinion,  that 
there  is  no  inference  of  fraud  or  consent  against  the  mort- 
gagee, to  prevent  him  from  considering  the  lessee  as  a 
wrongdoer.  If  the  mortgagee  had  encouraged  the  tenant  to 
lay  out  money,  he  could  not  maintain  this  action  ;  but  here 
the  question  turns  upon  the  agreement  between  the  mort- 
gagor and  mortgagee.  When  the  mortgagor  is  left  in  pos- 
session, the  true  inference  to  be  drawn  is  an  agreement  that 
he  shall  possess  the  premises  at  will  in  the  strictest  sense, 
and  therefore  no  notice  is  ever  given  him  to  quit,  and  he  is 
not  even  entitled  to  reap  the  crop,  as  other  tenants  at  will 
are,  because  all  is  liable  to  the  debt;  on  payment  of  which 
the  mortgagee's  title  ceases.  The  mortgagor  has  no  power, 
express  or  implied,  to  let  leases,  not  subject  to  every  cir- 
cumstance of  the  mortgage.  Whoever  wants  to  be  secure, 
when  he  takes  a  lease,  should  inquire  after  and  examine  the 
title-deeds.     It  was  said  at  the  bar,  that  if  the  plaintiff  can 


196  THE   LAW   OF   MORTGAGES.  [CH.  IX. 

recover,  he  will  also  be  entitled  to  the  mesne  profits  from  the 
tenant,  in  an  action  of  trespass,  which  would  be  a  manifest 
hardship  and  injustice,  as  the  tenant  would  then  pay  the 
rent  twice.  I  give  no  opinion  on  that  point ;  but  there  may- 
be a  distinction,  for  the  mortgagor  may  be  considered  as 
receiving  the  rents  in  order  to  pay  the  interest,  by  an  im- 
plied authority  from  the  mortgagee,  till  he  determine  his 
will." 

20.  This  case  is  cited  by  Lord  Ellenborough  in  Thunder 
V.  Belcher,^  as  "  decisive  against  the  claim  of  the  tenant  to 
notice  to  quit."  It  might  be  otherwise,  if  the  mortgagee 
had  received  rent.  In  such  case,  although  the  lease  would 
be  invalid,  the  occupant  would  become  tenant  from  year  to 
year.  "  But  a  mortgagor  is  no  more  than  a  tenant  at  suf- 
ferance, not  entitled  to  notice  to  quit;  and  one  tenant  at 
sufferance  cannot  make  another.  The  defendant  never  had 
any  possession  under  the  mortgagee  from  whence  any  ten- 
ancy could  be  inferred,  and  therefore  was  not  entitled  to  any 
notice.  He  could  not  be  said  to  have  any  possession  under 
the  mortgagee,  if  the  mortgagor  had  no  authority  to  let." 

2i.  In  Evans  v.  Elliot,'^  Lord  Denman  remarked  upon  this 
case:  —  "  The  well-known  case  of  Keech,  lessee  of  Warne  v. 
Hall,  1  Doug.  21,  is  generally  considered  as  an  authority  the 
other  way;  but  Lord  Mansfield  was  not  there  laying  down 
the  law  upon  the  subject,  so  much  as  explaining  his  own 
view  of  the  manner  in  which  mortgagor  and  mortgagee 
commonly  regard  one  another  in  fact.  I  must  add  that 
some  misconception  may  have  arisen  on  this  subject,  from 
the  care  the  courts  have  employed  in  correcting  an  acknowl- 
edged error  of  the  same  great  judge,  the  error  of  supposing 
that  the  right  to  recover  in  ejectment  could  depend  on  any- 
thing but  the  legal  right  of  possession.  This  most  frequently 
follows  the  legal  estate  ;  though  Lord  Mansfield  was  dis- 
posed in  some  cases  to  transfer  it  to  him  in  whom  no  more 
than  an  equitable  title  was  vested.  A  strong  assertion  of 
the  right  of  the  mortgagee  in  such  a  case  against  the  mort- 
*  3  E-  450.  2  9  Ad.  &  El.  342. 


CH.  IX.]      ESTATE    OF   THE    MORTGAGOR,   IN   POSSESSION.  197 

gagor  may  have  led  to  the  notion  that,  as  against  the  former, 
not  only  the  latter,  bijt  all  claiming  under  him,  must  be 
wrongdoers,  without  adverting  to  the  possibility  of  the  right 
of  possession  being  recognized  in  another  by  the  person 
enjoying  the  legal  estate." 

22.  In  conformity  with  the  doctrine  of  Keech  v.  Hall,  it 
is  said,  "  all  those  who  come  in  under  the  mortgagor  are, 
strictly  speaking,  trespassers."  ^  So,  in  another  case,'^  "  if  a 
person  who  has  an  estate,  borrows  money  on  it  upon  mort- 
gage, and  becomes  the  mortgagor  of  it,  and  this  mortgagor 
afterwards  grants  a  lease  of  the  property  to  a  tenant,  we  will 
suppose  for  twenty-one  years,  that  lease,  being  made  after 
the  mortgage,  cannot  be  set  up  by  the  tenant  to  prevent  the 
person  who  has  let  the  money  (whom  we  call  mortgagee) 
from  recovering  the  possession  of  the  property,  and  the  mort- 
gagee may  put  the  tenant  out  of  possession  by  an  ejectment, 
and  the  only  remedy  the  tenant  has  for  being  thus  put  out 
of  possession  is  against  the  mortgagor."  So  the  tenant  at 
will  of  a  mortgagor,  who,  on  the  mortgagee's  entry,  refuses 
to  pay  him  rent  or  quit,  is  liable  to  the  mortgagee  in  tres- 
pass for  the  rents  subsequently  accruing.^  So  it  has  been 
held,  that,  where  a  mortgagee  enters  under  a  judgment,  the 
land  being  in  possession  of  a  tenant  under  a  lease  subse- 
quent to  the  mortgage,  there  is  no  privity  between  them,  and 
the  mortgagee  may  treat  the  occupant  as  disseisor  or  a  ten- 
ant, at  his  election.^ 

23.  In  New  York,  the  rule  established  in  the  case  of  Jack- 
son V.  Laughhead  (p.  193)  which  requires  previous  notice  to 
the  mortgagor  himself,  is  held  in  a  later  case^  not  applicable 
to  a  suit  brought  by  the  mortgagee  against  a  purchaser  from 
the  mortgagor.  The  Court  say,  —  all  privity  between  the 
parties  is  now  gone.  The  purchaser  is  a  stranger  to  the 
contract  by  which  the  mortgage  was  created.     He  cannot  be 

^  Per  Littledale,  J.,  Pope  v.  Biggs,  *  Massachusetts,  &c.  v.  Wilson,  10 

9  B.  &  C.  254.  Met.  127. 

2  pgj.  Patteson,  J.,  Doe  v.  Bucknell,  ^  Jackson  v.  Fuller.     4  Johns.  215. 

8  Carr.  &  P.  567.  See   Jackson  v.   Stackhouse,  1  Cow. 

^  Hill  V.  Jordan,  30  Maine,  367.  126. 
17* 


198  THE   LAW   OF   MORTGAGES.  [CH.  IX. 

considered  in  the  light  of  a  tenant.  He  knows  nothing  of 
the  original  debt,  and  is  under  no  personal  obligation  to  pay 
it.  He  holds  possession  of  the  pledge,  but  not,  as  in  the 
other  case,  "  by  a  perfect  understanding  between  him  and 
the  mortgagee."  He  claims  exclusively  by  a  title  from  the 
mortgagor.  "  If  notice  be  required  in  this  case,  it  must  be 
so  in  every  case  of  ejectment  upon  mortgage,  even  though 
the  land  has  been  conveyed  in  fee  from  hand  to  hand,  until 
all  knowledge  of  any  existing  incumbrance  is  totally  lost." 

24.  But  a  still  more  recent  decision  holds,  that  ejectment 
does  not  lie  in  favor  of  a  mortgagee  against  a  purchaser  from 
the  mortgagor,  without  notice  to  quit,  where  the  demise  is 
laid  in  the  declaration  prior  to  any  default  of  payment.  Al- 
though the  defendant,  having  taken  an  absolute  conveyance, 
not  acknowledging  the  mortgage,  is  not  entitled  to  notice, 
the  sale  itself  being  an  act  of  disloyalty  ;  the  right  of  entry  of 
the  mortgagee  did  not  accrue  till  a  default  in  payment  and 
a  termination  of  the  tenancy,  neither  of  which  had  happened 
at  the  time  of  the  demise  as  laid  in  the  declaration. 

25.  Where  one  in  possession  under  the  mortgagor  refuses 
possession  to  the  mortgagee  upon  his  entry  for  breach  of 
condition  ;  the  latter  may  maintain  an  action  against  him 
for  mesne  profits,  though  the  entry  be  insufficient  for  fore- 
closure.^ Wilde,  J.,  says,^ — the  plaintiffs  might  elect  to 
consider  the  defendants  as  trespassers,  after  their  refusal  to 
quit,  as  they  might  consider  them  as  disseizors,  and  in  a 
writ  of  entry  evict  them.  And  if  the  defendants  refuse  to 
quit,  and  their  continued  occupation  against  the  will  of  the 
plaintiffs  would  amount  to  an  actual  disseisin  ;  still  the  plain- 
tiff's by  their  subsequent  entry  became  lawfully  reseized,  and 
had  a  right  to  maintain  trespass  for  the  mesne  profits,  with- 
out resorting  to  a  writ  of  entry.  So,  where  the  mortgagee 
himself  purchases  under  a  sale  for  foreclosure,  after  the  de- 
cree, he  may  treat  an  occupant  under  the  mortgagor  as  a 
tenant  or  trespasser ;  and  is  entitled  to  the  rents,  from  a  de- 
mand of  possession,  or  the  making  of  a  conveyance.^ 

'  Nortliampton  &c.  i;.  Ames,  8 Met.  1.        s  Castleman  v.  Belt,  2 B.  Monr.  158. 
*  Ibid.  7. 


CH.   IX.]      ESTATE    OF   THE   MORTGAGOR,   IN   POSSESSION.  199 

26.  Upon  the  question,  how  far  the  mortgagee  may  be  de- 
barred by  his  own  conduct  in  reference  to  a  lessee  of  the 
mortgagor,  from  treating  him  as  a  trespasser  or  occupant 
without  right,  there  is  no  little  confusion  in  the  cases.  The 
general  principle  is,  that,  although  a  lease  made  by  the  mort- 
gagor is  invalid  against  the  mortgagee,  if  he  chooses  so  to 
consider  it ;  yet  he  may,  at  his  election,  ratify  such  lease, 
and  adopt  the  lessee  as  his  tenant ;  thereby  substituting  a 
liability  on  the  part  of  the  lessee  to  himself  for  rent,  in  place 
of  the  former  one  to  the  mortgagor. 

27.  It  is  perfectly  well  settled,  that  the  mortgage,  of  itself, 
and  independent  of  some  specific  action  of  the  mortgagee, 
directed  to  that  end,  will  not  authorize  him  to  claim  the  rents 
and  profits.  Thus  it  is  held,  that,  where  the  mortgagee  has 
not  taken  a  specific  pledge  of  the  rents  and  profits,  he  has  no 
equitable  claim  to  them,  as  against  the  assignee  of  a  chattel 
mortgage  from  the  tenant  to  the  mortgagor,  to  secure  the 
rent.  If  the  mortgagee  obtains  an  order  upon  the  tenant, 
to  attorn  to  a  receiver  appointed  in  a  foreclosure  suit,  he  can 
claim  only  immediate  possession  of  the  premises,  as  security. 
If  the  tenant  has  gone  into  possession  pendente  lite,  the  order 
may  be,  that  he  yield  possession  or  pay  rent  from  that  time 
to  a  receiver.  But  he  has  no  right,  in  any  event,  to  an  order, 
especially  as  against  the  equitable  rights  of  others,  which  will 
in  effect  vest  him  with  the  possession  nunc  pro  tunc,  as  of  a 
time- anterior  to  the  application.^ 

28.  But  although,  if  the  mortgagee  does  not  choose  to  en- 
ter and  receive  the  rents,  the  tenant  may  pay  rent  to  the  mort- 
gagor ;  it  seems  to  be  the  prevailing  rule,  that,  after  notice 
by  the  mortgagee  of  his  title,  and  a  claim  of  rent,  the  rent 
must  be  paid  to  him.^  Thus  it  has  been  held,  that,  where  a 
mortgage  is  duly  recorded,  a  tenant  cannot  lawfully  pay  a 
year's  rent  in  advance  to  the  mortgagor ;  and,  if  he  does  so, 
upon  a  bill  for  foreclosure  by  the  mortgagee,  the  Court  may 

1  Zeiter  v.  Bowman,  6  Barb.  133  ;  "^  2  Greenl.  Cruise,  107,  n. ;  ace. 
Weidner  v.  Foster,  2  Penn.  23 ;  Myers  Smith  v.  Taylor,  9  Ala.  633  ;  Bab- 
V.  White,  1  Kawle,  355.  cock  v.  Kennedy,  1  Verm.  457. 


200  THE   LAW   OF   MORTGAGES.  [CH.    IX. 

compel  him  to  pay  it  again  to  a  receiver.^  And,  after  notice, 
the  mortgagee  has  been  held  entitled  to  claim  the  rents  and 
profits  due  at  the  time  of  such  notice,  as  well  as  those  which 
accrue  subsequently.-  So  where  the  assignees  of  a  bank- 
rupt  mortgagor  brought  an  action  for  use  and  occupation 
against  his  lessee,  under  a  lease  made  after  the  mortgage  ; 
it  was  held,  that  the  defendant  might  show  in  defence  a 
payment  made  to  the  mortgagee  after  notice  and  demand.^ 
So  to  an  avowry  for  rent,  the  tenant  may  plead  payment  of 
it  to  a  mortgagee,  under  a  mortgage  prior  to  the  lease,  who 
had  demanded  payment  from  the  tenant,  and  threatened  to 
put  "  the  law  in  force  "  in  case  of  refusal.  Such  plea  is  in 
substance  a  plea  of  payment,  not  a  nil  habuit,  or  eviction. 
The  defect  of  the  lessor's  title  is  shown,  only  as  a  medium 
of  proof,  that  the  payment  was  for  his  benefit,  and  by  reason 
of  his  default.  The  plea,  far  from  denying  the  mortgagor's 
title  to  grant  the  lease,  recognizes  his  title  throughout,  and 
admits  the  money  to  have  been  rent  due  and  in  arrear  to  him, 
and  proceeds  to  show  how  it  has  been  satisfied.^  So,  where 
a  mortgagor  leased  the  land  by  parol,  and  a  second  mortga- 
gee entered,  and  notified  the  tenant  that  he  should  thenceforth 
claim  rent  of  him,  to  which  the  tenant  did  not  object ;  and 
the  mortgagee  subsequently  recovered  the  land  from  the  ten- 
ant by  a  writ  of  entry  :  held,  the  mortgagee  might  maintain 
assumpsit  for  the  rent,  from  his  entry  to  the  time  of  suing 
out  the  writ  of  entry,  by  which  act  he  elected  to  consider  the 
defendant  as  a  disseizor  ;  and  that  the  prior  mortgage  was  no 
bar  to  the  suit,  the  prior  mortgagee  having  never  entered  or 
claimed  rent.^  So,  where  a  mortgagor  makes  a  lease,  if  after 
forfeiture  the  tenant  promises  to  pay  and  pays  rent  to  the 
mortgagee,  he  becomes  the  mortgagee's  tenant,  and  the  mort- 
gagor can  maintain  no  action  for  the  rent.^     So  one  Morton, 


1  Hensliaw  v.  Wells,  9  Humph.  568.  *  Johnson    v.  Jones.    9  Ad.  &    Ell. 

'■^  Hutdiinson    t'.   Dearing,    20  Ala.  809. 

798 ;  Coktr  i-.  Pearball,  6  Ala.  542.  6  Cavis  v.  McClary,  5  N.  H.  529. 

»  roi)e  .-.   Biggs,  9  B.  &    C.  245 ;  ^  i^imball  v.  Lockwood,  6  R.  I.  138. 
Doe   f.    Siiiii)gon,  3  Kerr,  194  ;    ace. 
Sudinan  v.  Uasset,  18  Verm.  346. 


CH.   IX.]      ESTATE   OF   THE   MORTGAGOR,   IN    POSSESSION.  201 

being  an  owner  in  fee,  mortgaged  to  Marriott,  but  remained 
in  possession,  and  afterwards  demised  part  for  a  term  to  Bar- 
ton, who  also  entered  ;  after  which  Morton  mortgaged  to 
Higginbotham  ;  who  subsequently  received  rent  from  Barton, 
and  demised  the  other  part  to  Bullock.  Afterwards  Barton 
and  Bullock,  upon  notice  from  Marriott,  paid  rent  to  him. 
Higginbotham  then  brings  ejectment,  after  notice  to  quit, 
against  Barton  and  Bullock.  Held,  the  defendants  might 
both  set  up  in  defence  the  first  mortgage  to  Marriott,  his  no- 
tice to  them,  and  their  payment  of  rent  to  him ;  and  that 
Morton's  being  only  a  mortgagor  in  possession,  at  the  time  of 
the  demise  to  Bullock,  did  not  affect  Morton's  right  to  con- 
fer upon  him  by  demise  a  legal  title  to  possession,  but  Bul- 
lock might  show,  that  Morton  had  since  been  treated  as  a 
trespasser  by  the  mortgagee,  so  as  to  determine  the  right  of 
Morton ;  and  that  the  mortgagee's  notice  to  the  tenant  to 
pay  him  the  rent  might,  if  received  in  evidence,  tend  to  show? 
that  the  mortgagee  treated  the  mortgagor  as  a  trespasser.-^ 
Lord  Denman  says,^  the  mortgagee  "  was  entitled  to  the 
profits  of  the  land,  and  the  defendants  were  right  in  paying 
him  those  profits,  whether  strictly  called  rent  or  not.  He 
might  have  ejected  them,  and  afterwards  let  to  them  ;  and  it 
seems  absurd  to  require  him  to  go  through  the  form  of  an 
ejectment,  in  order  to  put  them  into  the  very  position  in 
which  they  now  stand."  And  further :  —  "  It  is  conceded  on 
all  hands,  that  where  a  lease  is  made  by  the  mortgagor  sub- 
sequently to  the  mortgage,  and  the  mortgagee  afterwards 
requires  the  rent  to  be  paid  to  him,  and  it  is  paid  accordingly, 
the  relation  of  landlord  and  tenant  may  arise  between  the 
parties.  Or,  at  all  events,  the  mortgagee  may  be  entitled  to 
sue  the  tenant  for  use  and  occupation."  To  the  same  effect 
it  is  said  by  Mr.  Justice  Bay  ley  ,^  in  case  of  a  lease  made 
after  the  mortgage,  "  the  tenant  may  consider  the  mortgagor 
his  landlord  so  long  as  the  mortgagee  allows  the  mortgagor 
to  continue  in  possession  and  receive  the  rents;  and  payment 

1  Doe  V.  Warburton,  11  Ad.  &  Ell.        "  lb.  pp.  31.5,  316. 
307.  3  Pope  y.  Biggs,  9  B.  &  C.  251. 


202  THE   LAW    OF   MORTGAGES.  [CH.   IX. 

of  the  rents  by  the  tenant  to  the  mortgagor,  without  any 
notice  of  the  mortgage,  is  a  valid  payment.  But  the  mort- 
gagee, by  giving  notice  of  the  mortgage  to  the  tenant,  may 
thereby  make  him  his  tenant,  and  entitle  himself  to  receive 
the  rents.  It  is  undoubtedly  a  well-established  rule,  that  a 
lessee  cannot  dispute  the  title  of  his  lessor  at  the  time  of  the 
lease,  but  he  is  at  full  liberty  to  show  that  the  lessor's  title 
has  been  put  an  end  to.  There  is  another  rule  of  law, 
namely,  that  the  mortgagor  cannot  dispute  the  title  of  the 
mortgagee."  So  the  holder  of  a  mortgage  upon  leased  prem- 
ises made  open  and  peaceable  entry  for  the  purpose  of  fore- 
closing and  receiving  the  rents  and  profits.  The  defendant, 
the  tenant,  consented  to  the  entry,  but  the  plaintiff,  an  as- 
signee of  the  mortgagor,  was  not  present.  The  holder  of  the 
mortgage  required  the  defendant  to  pay  him  rent  from  the 
time  of  entry,  and  he  agreed  to  do  so,  and  actually  paid  it, 
taking  a  bond  of  indemnity.  The  plaintiff  required  the  de- 
fendant to  pay  him,  forbade  him  to  pay  the  holder  of  the 
mortgage^  and  also  notified  the  latter,  that  he  would  not  con- 
sent to  his  having  possession  and  taking  the  rent.  Held,  the 
action,  being  for  use  and  occupa1;ion  after  such  entry,  would 
not  lie.^  So,  in  case  of  a  mortgage  and  subsequent  lease  by 
indenture,  for  five  years,  reserving  rent,  and  an  assignment 
of  the  lease  ;  between  five  and  six  months  after  the  lease,  the 
mortgagee  entered  to  foreclose,  and  the  lessee  attorned  to 
him,  and  afterwards  accounted  with  him  for  the  first  year's 
rent.  The  assignee  brought  an  action  against  the  tenant,  on 
a  quantum  meruit  count,  for  a  portion  of  the  first  year's  rent. 
Held,  the  action  could  not  be  maintained.^  So  a  notice  from 
a  mortgagee  to  an  agent  of  the  mortgagor,  employed  to  col- 
lect rent.-i  from  tenants  of  the  estate,  to  pay  the  rents,  when 
collected,  only  to  himself,  is  a  termination  of  the  mortgagor's 
tenancy  at  will,  and  makes  the  agent  a  trustee  for  the  mort- 
gagee, as  to  all  rents  subsequently  accruing.^ 

29.  But  on  the  other  hand  it  has  been  held,  that  the  ten- 

'  Welfli  r.  Adams,  1  Mot.  494.  8  Crosby  v.  Harlow,  8  Sliepl.  499. 

^  Kiiowk-s  V.  Maynard,  13  Mot.  352. 


CH.  IX.]       ESTATE    OP    THE    MORTGAGOR,    IN    POSSESSION.  203 

ancy  under  the  mortgagor  is  not  affected  by  an  authority  from 
the  mortgagor  to  the  mortgagee  to  receive  the  rents,  though 
perhaps  such  authority  may  be  irrevocable,  and  justify  all 
payments  made  under  it  while  the  debt  continues.^  So, 
where  a  mortgagor  made  a  lease,  and,  rent  being  due,  the 
mortgagee  gave  notice  of  the  mortgage  to  the  tenant,  and 
claimed  the  rent ;  held,  in  an  action  for  use  and  occupation 
by  the  mortgagor,  such  claim  and  notice,  without  payment, 
fm-nished  no  defence  to  the  suit.^  And  it  is  said  in  a  recent 
case,^  "  whether  mere  notice  to  tenants  by  a  mortgagee  to 
pay  rent  to  him,  or  any  other  act  short  of  an  actual  or  con- 
structive entry,  will  defeat  the  right  of  the  mortgagor  to  take 
the  rents  and  profits  to  his  own  use,  may  be  a  question." 
So  a  mortgagor  may  recover  the  rents  from  one  who  has 
wrongfully  received  them,  the  mortgagee  having  made  no 
claim  to  them,  although  the  law  day  be  past.'*  So  it  is  held 
in  New  York,  that,  although  where  a  mortgage  is  made  by 
one  who  has  previously  leased  the  land  the  mortgagee  may 
distrain  for  rent ;  yet,  where  a  lease  is  made  by  the  mort- 
gagor after  the  mortgage,  the  mortgagee  can  neither  distrain 
nor  sue  for  rent,  there  being  no  privity  of  contract  or  estate 
between  him  and  the  tenant.  Spencer,  Ch.  J.,  remarks,^ 
there  is  no  adjudged  case  which  countenances  the  contrary 
doctrine.  The  mere  legal  ownership  of  the  land  cannot 
authorize  either  an  action  or  a  distress  for  the  rent.  The 
mortgagor  holds,  it  is  true,  upon  an  implied  consent  and 
agreement,  existing  between  him  and  the  mortgagee ;  and  is 
therefore  entitled  to  notice  to  quit,  before  he  can  be  proceeded 
against  as  a  trespasser ;  but  it  would  be  going  too  far  to  say 
that  he  might  make  leases,  which  the  mortgagee  might  or 
might  not  affirm,  at  his  election.  The  relation  between  them 
does  not  imply  a  right  on  the  part  of  the  mortgagor  to  lease. 
So,  in  New  Jersey,  a  mortgagor  in  possession  having  con- 

1  Wheeler  v.  Branscomb,  5  Q.  B.  10  Met.  114.     See  Smith  v.  Shepard, 
373.  15  Pick.  147. 

2  Milton  V.  Dunn,  7  Eng.  Law  &  Eq.         *  Branch,  &c.  v.  Fry,  23  Ala.  770. 
406.  ^  McKircher  v.  Hawley,  16  Johns. 

5*  Per  Shaw,  C.  J.,  Field  v.  Swan,     292;  Watts  v.  Coffin,  11  Johns.  495. 


204  THE   LAW    OF   MORTGAGES.  [CH.   IX. 

veved  the  land,  the  grantee  admitted  a  third  person  as  his  ten- 
ant. Afterwards,  the  grantee's  interest  was  sold  on  execution. 
Immediately  upon  the  sale  and  before  any  deed  was  given, 
the  tenant  attorned  to  the  execution  purchaser,  and  agreed  to 
occupy  at  a  certain  rent.  The  mortgagee  afterwards  notified 
the  tenant  to  pay  rent  to  him,  and  the  tenant,  receiving  an  in- 
demnity, did  so.  The  execution  purchaser  then  brings  this 
action  against  the  tenant  for  the  rent.  Held,  the  facts  above 
stated  famished  no  defence  to  the  suit.  Where  the  mort- 
gage is  subsequent  to  the  lease,  the  rent  passes  as  incident 
to  the  reversion  which  is  mortgaged,  and  the  mortgagor  is 
estopped  by  his  own  deed  to  claim  it  afterwards.  But,  in 
this  case,  the  mortgage  being  made  first,  the  defendant  was 
never  tenant  to  the  mortgagee,  nor  even  to  the  mortgagor. 
The  Court  further  remarked,  that  by  a  statutory  provision  of 
the  State  a  tenant  shall  not  attorn  to  a  stranger.  Therefore 
the  tenant  could  lawfully  attorn  only  to  the  grantee  or  a  pur- 
chaser from  him,  and  the  execution  purchaser  stood  in  the 
same  position  as  one  taking  a  direct  conveyance ;  while  the 
mortgagee  was  to  be  regarded  as  a  stranger.  And  although 
mortgagees  are  excepted  from  the  general  statutory  provision 
against  attornment,  the  effect  of  this  exception  is  merely  to 
render  attornment  to  a  mortgagee  valid  or  invalid,  according 
to  the  circumstances  of  each  case,  but  not  to  authorize  at- 
tornment to  any  one  but  the  landlord's  grantee.^ 

30.  With  regard  to  the  precise  nature  of  the  relation  be- 
tween the  mortgagee  and  tenant  of  the  mortgagor,  growing 
out  of  any  implied  or  express  recognition  of  such  tenancy  by 
the  mortgagee ;  it  is  held,  that  after  demand  of,  or  distress 
for,  rent  in  arrear,  eo  nomine,  by  the  mortgagee,  the  mortga- 
gor's tenant  cannot  be  treated  as  a  trespasser.^  So  Lord 
Denman  maintained,^  that  by  his  own  acts  the  mortgagee 
might  be  estopped  from  treating  a  lessee  of  the  mortgagor 

'  Souders    v.   Vansickle,    3    Halst.  v.  Savage,  7  Bing.  595 ;  Megginson  v. 

314.  Hari)er,    4    Tyrwh.   100;    Rogers    v. 

^  Doe  V.  Hales,  7  Bing.  322.     See  Hiirnphrevs,  4  Ad.  &  El.  313 ;  Carvis 

Doc  1-.  Lewis,  13  M.  &  W.  241  ; v.  McClary,  5  N.  H.  530. 

V.   KeiiKington,  H  (I  B.  42'J  ;  Jacob  v.        »  Evans  v.  Elliot,  9  Ad.  &  Ell.  342. 
Milford,   1  Jac.  &  W.  029;  Vallance 


CH.    IX.J      ESTATE    OF   THE   MORTGAGOR,   IN   POSSESSION.  205 

as  a  trespasser  ;  and  suggested,  that  a  jury  might  infer  recog- 
nition of  the  lessee's  title  by  the  mortgagee,  from  his  know- 
ingly allowing  the  mortgagor  to  remain  the  apparent  owner, 
and  deal  with  the  property  as  his  own.  His  language  is  as 
follows.^  It  has  been  argued,  "that  the  mortgagee  may  al- 
ways treat  the  mortgagor  and  all  who  claim  under  him  as 
trespassers  ;  and  that,  for  that  reason,  the  mortgagor's  lessee 
cannot  become  the  tenant  of  the  mortgagee.  My  learned 
brothers  are,  I  believe,  disposed  to  assent  to  this  proposition, 
which,  generally  speaking,  is  certainly  not  to  be  questioned. 
But,  for  my  own  part,  I  wish  to  guard  myself  against  being 
understood  to  adopt  it  as  universal.  The  contrary  must,  I 
think,  be  admitted,  —  that  a  mortgagee  may  so  bind  himself 
by  his  own  conduct  as  to  be  precluded  from  treating  the 
mortgagor's  lessee  as  a  trespasser ;  what  conduct  might 
amount  to  a  recognition,  seems  to  me  to  be  rather  matter  of 
evidence  than  of  law.  I  am  by  no  means  prepared  to  admit, 
that  a  jury  would  not  be  warranted  in  inferring  a  recognition 
of  the  tenant's  right  to  hold,  from  the  mere  circumstance  of 
the  mortgagee's  knowingly  permitting  the  mortgagor  to  con- 
tinue the  apparent  owner  of  the  premises,  as  before  the  mort- 
gage, and  to  lease  them  out,  exactly  as  if  his  property  in 
them  continued."  So,  where  a  mortgagor  leased  for  years, 
and  an  assignee  of  the  mortgage  (having  notice  of  such  lease) 
gave  notice  to  the  tenant  of  the  mortgage,  and  required  him 
to  pay  to  the  assignee  all  rent  due  and  to  become  due  for 
the  premises ;  held,  from  these  facts  a  jury  might  infer  a 
contract  of  tenancy  for  a  year  between  the  assignee  and  the 
tenant.^ 

31.  But  it  is  held,  that  if  a  mortgagee,  in  case  of  a  lease 
for  years  by  the  mortgagor,  instead  of  turning  the  tenant  out 
of  possession,  consents  to  take  him  as  his  tenant,  the  mort- 
gagee will  not  thereby  set  up  the  lease,  but  will  make  the 
tenant  his  tenant  from  year  to  year  only.^     And  in  a  late 

1  9  Ad.  &  Ell.  354,  355.  ^  Doe   v.  Bucknell,   8  Carr.   &  P. 

2  Brown  v.  Story,  1  Scott,  (New)  9.     566. 

VOL.   I.  18 


20G  THE   LAW    OF  MORTGAGES.  [CH.    IX. 

case  ^  it  was  said  :  —  "I  never  could  see  how  notice  could 
make  the  mortijagor's  tenant  tenant  to  the  mortgagee  at  the 
former  rent.  There  might  indeed  be  a  new  tenancy  created 
at  the  old  rent,  where  such  notice  was  given,  and  the  rent 
paid  accordingly."  Littledale,  J.,  says,  "  if  the  lease  was 
made  subsequently  to  the  mortgage,  I  see  no  remedy  the 
mortgagee  could  have  against  the  tenant,  on  non-payment  of 
the  rent,  but  to  bring  ejectment."  So  it  is  held,  that  to  an 
ejectment  upon  a  mortgage  against  a  tenant  of  the  mortgagor 
it  is  no  defence,  that  the  plaintiff  had  received  interest  there- 
upon, to  a  time  subsequent  to  the  demise  laid  in  the  decla- 
ration ;  such  receipt  not  amounting  to  a  recognition  that  the 
mortgagor  or  his  tenant  was  up  to  that  time  in  lawful  pos- 
session.^ Lord  Tenterden,  C.  J.,  distinguishes  this  case  from 
Doe  V.  Hales,  (7  Bing.  322,)  where  the  defendant  proved, 
that  subsequently  to  the  day  laid  in  the  declaration  he  was 
in  possession,  as  a  tenant  of  the  mortgagor,  and  the  plain- 
tiff called  on  him,  demanded  interest  on  the  mortgage,  and 
received  it  eo  nomine  as  interest,  requiring  the  defendant  to 
pay  it  instead  of  rent  to  the  mortgagor.  Littledale,  J.,  ques- 
tions the  correctness  of  that  decision.  Parke,  J.,  says,  "  Doe 
v.  Hales  only  shows,  that  where  the  mortgagee  recognizes  a 
party  as  being  in  lawful  possession  of  the  premises  at  a  given 
time,  it  is  not  competent  to  him  to  say  afterwards  that  at 
that  time  he  was  a  trespasser.  Here  fhe  lessor  of  the  plain- 
tiff never  recognized  the  defendant  as  being  in  lawful  pos- 
session." ^  So  it  is  held,  that,  notwithstanding  a  distress  for 
rent  by  the  mortgagee,  he  may  treat  the  mortgagor  as  a  tres- 
passer, upon  a  subsequent  default.^  And  that  the  reserva- 
tion of  a  power  of  distress,  in  case  the  interest  should  be  in 
arrear,  in  like  manner  as  for  rent  reserved  on  the  lease,  or 
even  a  distress  under  such  power,  is  not  of  itself  sufficient  to 
create  a  tenancy,  or  prevent  an  ejectment  without  notice,  but 

1  Partinpton  v.  Woodcock,  6  Ad.  &        »  Doe  v.  Cadwallader,  2  B.  &  Ad. 
Ell.  »iU5,  cm.    Pt-r  Patteson,  J.  47G,  477. 

^  Doe  V.  Cadwallader,  2  B.  &  Ad.        *  Doe  v.  Olley,  12  Ad.  &  Ell.  481. 

473 ;  1-.  GooJier,  IG  L.  J.  Q.  B. 

480,  N.  S.  ^ 


CH.  IX.]      ESTATE    OF   THE   MORTGAGOR,   IN   POSSESSION.  207 

is  a  mere  collateral  power,  and  the  demise  in  ejectment  may 
still  be  laid  on  a  day  prior  to  the  distress.^  So  in  a  case  ^ 
already  referred  to  it  was  held,  that,  by  notifying  the  lessee 
of  the  mortgage,  and  that  principal  and  interest  are  duef  and 
requiring  payment  of  rent,  the  mortgagee  does  not  make 
the  lessee  his  tenant,  nor  gain  the  right  of  distraining  for 
subsequent  rent  under  the  lease,  although  the  tenant  actually 
pay  him  rent  at  times  and  in  sums  corresponding  to  those  in 
the  lease,  and  by  letter  recognize  him  as  his  landlord.  But, 
in  a  late  case,  the  defendants,  a  railway  company,  laid  their 
rails  upon  certain  lands  mortgaged  to  the  plaintiff,  and,  being 
called  upon  by  him  for  compensation,  negotiated  with  him 
on  the  subject.  The  plaintiff  had  never  been  in  possession, 
but  gave  notice  of  the  mortgage  to  the  defendants,  and  then 
brought  an  action  for  use  and  occupation.  Held,  "there 
was  evidence  for  the  jury  of  the  defendants'  having  held  the 
land  on  the  terms  of  paying  for  it,  and  that  the  plaintiff,  being 
a  mortgagee  out  of  possession,  and  never  having  entered  pre- 
viously to  the  trespass,  nor  having  a  judgment  by  default  or 
a  verdict  in  ejectment,  could  not  maintain  an  action  of  tres- 
pass against  the  defendants."  ^ 

32.  Similar  questions  arise  from  the  actual  foreclosure  of 
a  mortgage.  Upon  this  point  it  has  been  held,  that,  where  a 
mortgagor  leases  the  mortgaged  premises,  a  foreclosure  and 
sale  extinguish  the  lessee's  title.  And  though  he  be  not 
evicted,  if  he  attorn  to  the  purchaser,  the  right  of  the  lessor 
to  the  future  rents  is  extinguished.  So,  if  the  tenant,  on  be- 
ing requested  to  attorn,  yield  up  possession,  this  is  equiva- 
lent to  an  eviction,  and  will  be  a  good  defence  to  an  action 
by  the  lessor  for  subsequent  rent.  And  though  the  lessor  as- 
sign the  lease  to  the  purchaser,  and  consent  that  the  rent  be 
paid  him  for  the  rest  of  the  term,  the  tenant  may  still  quit, 
and  refuse  to  pay  the  subsequent  rents.^     And  the  following 

1  Doe  V.  Goodier,  16  L.  J.  Q.  B.  435,  *  Simers  v.  Saltus,  3  Denio,  214. 
N.  S.  See  Jones  v.  Clarke,  20  Jolins.  121 ; 

2  Evans  v.  Elliot,  9  Ad.  &  Ell.  342.       Magill  v.  Hinsdale,  6  Conn.  469. 

3  Turner  v.  Camerons,  &c.,  2  Eng. 
Law  Sl  Eq.  842. 


208  THE    LAW    OF   MORTGAGES.  [CH.    IX. 

important  distinctions  iiave  been  made  in  Kentucky.  A 
mortf^ao-ee  of  a  rcveri?ion  may  sue  the  tenant  of  the  mortga- 
cror  for  use  and  occui)ation,  unless  he  has  paid  his  rent  before 
notic»  of  the  mortgage.  But  where  a  mortgagor  in  posses- 
sion makes  a  lease,  and  the  lessee  is  suffered  to  remain  in 
possession,  the  mortgagee  cannot  maintain  an  action  for  rent. 
And  the  purchaser  of  an  equity  of  redemption  does  not  ac- 
/"  quire,  as  incident  thereto,  any  legal  right  to  rent  reserved  by 
the  vendor,  and  accruing  after  the  purchase  ;  the  doctrine 
that  rent  goes  with  the  reversion  being  a  technical  one,  and 
applicable  only  to  the  legal  title.  But  a  mortgagee,  pur- 
chasing under  a  decree  of  foreclosure,  may,  after  the  date  of 
the  decree,  treat  one  in  possession  under  the  mortgagor  as 
tenant  or  trespasser,  and,  from  the  time  of  demanding  pos- 
session or  obtaining  conveyance,  is  entitled  to  the  accruing 
rents.^  , 

33.  The  effect,  also,  of  a  judgment  and  execution  under 
the  mortgage  have  been  brought  in  question.  Thus  the 
plaintiffs,  having  a  mortgage  of  a  farm  occupied  by  the  de- 
fendant under  a  lease  from  Robinson,  subsequent  to  the 
mortgage,  recovered  judgment  on  the  mortgage,  and  on  the 
first  day  of  January,  1843,  took  possession  under  an  execu- 
tion thereu]3on.  The  defendant  remained  in  possession, 
without  any  new  contract,  and  on  the  30th  of  March,  1843, 
the  plaintiffs  first  demanded  rent.  The  plaintiffs  bring  ^5- 
sumpsit  to  recover  the  rent  from  October  1,  1842,  to  April  1, 
1843,  the  defendant  having,  after  the  1st  of  April,  paid  it  to 
the  order  of  Robinson,  drawn  January  21,  1843.  It  did  not 
appear  at  what  periods  the  rent  was  payable.  Held,  the 
plaintiffs  should  recover  the  rent  that  accrued  after,  but  not 
what  accrued  before,  their  entry .^ 

34.  Upon  the  subject  above  considered,  Mr.  Coote  remarks 
as  follows  :  —  "A  purchaser  of  the  equity  of  redemption  from 
the  mortgagor,  or  a  lessee  who  defends  for  the  mortgagor's 


'  CastU-nian    i;.   Belt,   2   B.   Monr.        2  Massachusetts,  &c.  v.  Wilson,  10 
lii^.  Met.  126. 


CH.  IX.]       ESTATE   OF   THE   MORTGAGOR,   IN   POSSESSION.  209 

benefit,  cannot  set  up  a  legal  title  in  a  third  person,  para- 
mount to  that  of  the  mortgagor,  or  a  prior  legal  mortgage 
from  the  mortgagor  to  a  third  person,  in  order  to  defend  his 
own  possession.  But  the  rule  does  not  apply,  when  a  sub- 
sequent purchaser  or  mortgagee,  for  valuable  consideration, 
without  notice  of  the  prior  mortgage,  obtains  a  valid  legal 
conveyance  from  the  mortgagor,  who  has,  in  the  mean  time, 
become  clothed  with  the  legal  estate,  or  gets  in  an  outstand- 
ing legal  estate  ;  though  it  would  seem  that  such  party 
might  be  bound  by  estoppel,  if  the  mortgage  contained  a 
positive  recital  of  the  mortgagor's  seisin.  Of  course,  a  les- 
see, claiming  under  the  mortgagor  subsequently  to  the  mort- 
gage, may  show  an  eviction  by  paramount  title  in  defence 
to  an  ejectment  by  the  mortgagee  ;  or  if  the  lease  be  prior  to 
the  mortgage,  it  would  seem  that  he  may  either  make  this 
defence,  or,  without  proving  eviction,  show  that,  by  reason 
of  the  paramount  title,  nothing  passed  by  the  mortgage  ; 
and  notice  from  the  legal  owner  to  the  tenant  to  pay  the 
rent  to  him  is,  it  seems,  evidence  of  eviction."  ^  And  the 
same  writer  further  remarks  :  ^  —  "A  new  tenancy  may  be 
created  between  the  mortgagee  and  the  tenant  by  payment 
and  acceptance  of  rent,  as  rent,  or  even  by  the  acquiescence 
of  the  tenant  in  the  notice  to  pay  the  mortgagee ;  which 
will,  it  seems,  be  a  tenancy  from  year  to  year  upon  the  terms 
of  the  lease  ;  although  mere  notice  by  the  mortgagee,  to  pay 
the  rents  to  him  without  attornment  or  assent  on  the  part  of 
the  tenant,  is  insufficient  to  create  a  new  tenancy.  It  seems, 
such  notice  may  be  treated  as  an  eviction."  {i) 

1  Coote,  396;  Doe  v.  Clifton,  4  Ad.  755;  Doe   v.   Barton,  11  Ad.   &  Ell.- 

&  Ell.  813 ;  Doe  v.  Stone,  3  C.  B.  Rep.  307  ;  but  see  Gouldsworth  v.  Knights, 

176  ;  Right  v.   Bucknell,  2  B.  &  Ad.  11  Mees.  &  W.  337. 

278;    Goodtitle   v.   Morgan,    1  T.   R.  2  Coote,  402. 


(/)  By  indenture  of  the  23d  September,  1856,  B.  mortgaged  to  V.  as  se- 
curity for  a  loan,  with  a  power  of  sale  or  entry  in  default  of  payment  of  prin- 
18* 


210  THE   LAW    OF   MORTGAGES.  [CH.  IX 

35.  The  cases  above  referred  to  relate  to  tenancies  created 
by  the  mortgagor  after  the  mortgage.  Different  considera- 
tions apply,  and  different  rules  have  been  adopted,  where  the 
owner  of  land,  which  has  been  already  leased,  gives  a  mort- 
gage of  it.  If  a  lease  is  made  before  the  mortgage,  the  mort- 
gagee is  assignee  of  the  reversion,  and,  in  that  character,  en- 
titled to  all  the  rents  payable  by  the  lease ;  except  those  paid 
by  the  lessee  before  notice  of  the  assignment.  But  when 
the  lease  is  subsequent  to  the  mortgage,  the  mortgagee  is  not 
bound  by  it.  There  is  no  privity  between  him  and  the  les- 
see ;  and,  as  he  could  not  recover  rent  of  the  mortgagor,  it 
has  been  doubted  whether  he  could  recover  it  of  the  lessee, 
who  stands  in  the  mortgagor's  place.^ 


^  Fitchburg,  &c.  v.  Melven,  15  Mass.     J.,    in    Syracuse,  &.c.  v.   Tillman,  31 
269,  270.     See  the  remarks  of  Pratt,     Barb.  207. 


cipal  and  interest  on  a  certain  day.     The  deed  also  contained  the  following 
provision  : —  "  Lastly  to  the  intent  that  the  said  V.  may  have  for  the  recov- 
ery of  the  interest  accruing  on  the  principal  money  hereby  secured,  the  same 
powers  of  entry  and  distress  as  are  by  law  given  to  landlords  for  the  recov- 
ery of  rent  in  arrear,  the  said  B.  doth  hereby  attorn  and  become  tenant 
from  year  to  year  to  the  said  V.,  of  the  said  premises  hereby  assigned,  at 
and  under  the  yearly  rent  of  £125,  to  be  paid  by  half-yearly  payments  on 
the  23d  March  and  25th  September.     Nevertheless  it  is  hereby  agreed  that 
in  the  event  of  any  sale  under  the  powers  hereinbefore  contained,  the  at- 
tornment and  tenancy  so  created  shall,  as  regards  such  portion  of  the  prem- 
ises as  shall  be  sold,  be  at  an  end ;  and  that  without  any  previous  notice 
to  put  an  end  to  the  same."     By  indenture  of  the  18th  February,  1857,  B. 
assigned,  by  way  of  mortgage,  all  his  interest  in  the  mortgaged  premises  to 
the  plaintifis,  as  security  for  a  loan.     By  indenture  of  the   27th  October, 
1858,  Y.  assigned  his  mortgage  to  the  plaintiffs.     On  the  12th  November, 
1858,  the  plaintiffs  gave  B.  notice  that  they  had  entered  under  the  deed  of 
the  23d  September.     B.  refused  to  give  up  possession,  and  on  the  25th  No- 
vember the  plaintiffs  distrained  B.'s  goods  for  rent  alleged  to  be  due  up  to 
the  25th  September.     Held,  the  above  clause  did  not  create  a  tenancy 
from  year  to  year  with  all  its  incidents  ;  and  that  the  plaintiffs  might  maintain 
eje<rtment  against  B.  without  giving  him  six  months'  notice  to  quit.     Metro- 
politan, &c.  u.  Brown,  4  Hurl.  &  Nor.  428. 


CH.   IX.]      ESTATE   OF   THE   MORTGAGOR,   IN   POSSESSION.  211 

36.  As  we  have  said,  a  mortgage  of  leased  property  is  of 
course  a  mortgage  merely  of  the  reversion,  and,  in  general,  rent 
is  incident  to,  and  passes  with,  the  reversion.^  But  at  what 
time,  and  whether  by  the  mortgage  itself,  or  by  some  act  done 
under  it,  the  mortgagee  becomes  entitled  to  the  rents,  and 
whether  rents  in  arrear  differ  from  others  in  this  respect,  are 
points  upon  which  the  authorities  seem  not  fully  agreed.  Mr. 
Greenleaf  says,^  rent  in  arrear  at  the  time  of  a  mortgage  made 
by  the  lessor  does  not  pass  to  the  mortgagee.  So  it  is  held, 
that,  when  an  estate  previously  leased  is  mortgaged,  the  rents 
and  profits  pass  as  incident  to  the  reversion ;  and  if,  at  the 
time  possession  is  taken,  there  is  rent  accruing  upon  a  quarter 
not  expired,  the  rent  passes  as  incident,  and  the  mortgagee 
may  sue  for  it.  But  the  rent  which  has  accrued  prior  to  the 
entry  does  not  thus  pass,  being  a  mere  chose  in  action.^  Mr. 
Coote  says,^  if  the  lease  is  prior  to  the  mortgage,  or  made 
under  a  power  in  the  mortgage,  the  notice  of  the  mortgagee 
to  the  tenant  operates  as  an  attornment,  relating  back  to  the 
time  of  the  grant ;  and  all  rents  due  at  the  time  of  such  no- 
tice belong  to  the  mortgagee,  who  may  distrain  for  them,  or, 
if  the  tenant  holds  from  year  to  year  or  under  an  agreement, 
may  recover  them  in  an  action  for  use  and  occupation  ;  even 
though  the  mortgagor  has,  after  the  mortgage,  altered  the 
property  and  raised  the  rent.  But  a  mortgagee  taking  pos- 
session, or  a  receiver  appointed  on  his  behalf,  is  not  entitled 
to  the  crops  previously  severed  and  consigned  by  the  mort- 
gagor, though  not  actually  received  by  the  consignee.  So, 
in  the  case  of  Pope  v.  Biggs,^  Littledale,  J.,  says :  —  "  The 
mortgagee  cannot  indeed  distrain  or  maintain  any  action  for 
the  by-gone  rents  which  accrued  due  before  he  gave  notice 
to  the  tenants,  because  before  that  time  there  was  no  privity 
between  him  and  the  tenants.     But  the  notice  by  force  of 


1  See  Mansony  v.  U.  S.,  &c.,  4  Ala.  ^  Massachusetts,  &c.  v.  Wilson,  10 
N.  S.  746,  748 ;  Rawson  v.  Eicke,  7  Met.  127. 

Ad.  &  Ell.  451.  *  Coote,  402. 

2  2  Greenl.  Cruise,  180.  5  9  b.  &  C.  254,  255. 


212  THE   LAW   OF  MORTGAGES.  [CH.   IX. 

Stat.  4  Anne,  ch.  16,  operates  as  an  attornment  of  the  ten- 
ants, and  when  they  attorn  they  become  tenants  to  the  mort- 
gagee, and,  at  common  law,  that  attornment  would  have 
related  back  to  the  grant,  so  as  to  entitle  the  mortgagee  to 
all  the  rents  from  the  time  when  the  deed  was  executed.  A 
new  tenancy  is  then  created  ;  as  between  mortgagor  and 
mortgagee,  the  latter  becomes  entitled  to  all  the  by-gone 
rents.  All  those  who  come  in  under  the  mortgagor  are 
strictly  speaking  trespassers.  In  ejectment,  the  plaintiff 
might  declare  on  the  demise  of  the  mortgagee,  and  the  ac- 
cruing rents,  being  in  the  nature  of  mesne  profits,  might  be 
recovered  by  the  mortgagee  from  the  day  when  he  gave  no- 
tice of  the  mortgage  to  the  tenants.  And  if  the  mortgagee 
might,  after  bringing  an  ejectment,  recover  those  rents  in  an 
action  for  mesne  profits,  it  is  perfectly  clear  that  he  is  enti- 
tled, at  law,  to  receive  them  without  bringing  any  ejectment. 
As  to  the  accruing  rents,  there  has  been  that  which  is  equiv- 
alent to  an  eviction  by  title  paramount  before  those  rents 
became  due,  and  that  will  be  an  answer  to  any  action  for 
rent  by  the  mortgagor."  And  in  Moss  v.  Gallimore,^  (said 
to  be  the  leading  case  upon  this  subject,^)  certain  leased 
premises  were  conveyed  by  mortgage.  The  lessee  remained 
in  possession  some  years,  paying  rent  to  the  mortgagor,  when 
the  mortgagor  became  bankrupt,  owing  upon  the  mortgage 
more  than  the  sum  then  due  as  rent.  The  assignee  demand- 
ed the  rent,  and  then  the  mortgagee  ;  and  the  latter  distrained 
for  it.  Held,  the  distress  was  valid.  Lord  Mansfield  remarks 
upon  the  danger  of  the  lessee's  colluding  with  the  mortgagor, 
in  such  case,  against  the  mortgagee,  who  has  no  right  to 
eject  the  former,  he  having  the  prior  title  :  "  Of  late  years,  the 
courts  have  gone  so  far  as  to  permit  the  mortgagee  to  pro- 
ceed by  ejectment,  if  he  has  given  notice  to  the  tenant  that 
he  does  not  intend  to  disturb  his  possession,  but  only  requires 
the  rent  to  be  paid  to  him,  and  not  the  mortgagor.     This, 

1  Dougl.  279,  2  1  Smith's  Lead.  C.  314,  n. 


CH.   IX.]     ESTATE    OF   THE   MORTGAGOR,    IN    POSSESSION.  213 

however,  is  entangled  with  difficulties."  Attornment  is  un- 
necessary, no  rent  having  been  paid  before  notice.  "  But, 
having  notice  from  the  assignees  and  also  from  the  mortga- 
gee, he  dares  to  prefer  the  former,  or  keeps  both  parties  at 
arm's  length.  The  mortgagor  receives  the  rent  by  a  tacit 
agreement  with  the  mortgagee,  but  the  mortgagee  may  put 
an  end  to  this  agreement  when  he  pleases."  Ashurst,  J., 
says:  —  "  Where  the  mortgagor  is  himself  the  occupier,  he 
may  be  considered  as  tenant  at  will ;  but  he  cannot  be  so 
considered  if  there  is  an  under-tenant;  for  there  can  be  no 
such  thing  as  an  under-tenant  to  a  tenant  at  will.  The 
mortgagor  is  only  a  receiver  of  rent  for  the  mortgagee ;  who 
may,  at  any  time,  countermand  the  implied  authority." 

37.  The  execution  purchaser  of  an  equity  of  redemption 
has  been  held  entitled  to  the  same  privileges,  in  regard  to 
tenancy  and  rent,  previous  to  any  actual  or  constructive  dis- 
possession by  the  mortgagee,  as  the  mortgagor  or  his  lessee. 
Thus  a  mortgagor  leased  for  a  certain  term,  and  verbally 
agreed  with  the  mortgagee,  that  the  mortgagor  should  have 
possession  and  control,  and  receive  the  rent  of  the  estate. 
The  mortgagee  afterwards  brought  an  action  for  foreclosure 
against  the  mortgagor,  recovered  judgment,  and  took  out  an 
execution,  but  the  latter  was  never  delivered  to  an  officer, 
the  tenant  still  remaining  in  possession  under  the  lease. 
The  plaintiff,  a  creditor  of  the  mortgagor,  levies  an  execu- 
tion upon  the  equity  of  redemption,  himself  purchases  it,  and 
verbally  lets  the  estate  to  the  defendant,  who  enters  at  the 
expiration  of  the  former  lease,  and  occupies  till  dispossessed 
by  an  execution,  in  favor  of  the  mortgagee  against  the  plain- 
tiff, in  a  writ  of  entry.  The  plaintiff  brings  an  action  to  re- 
cover rent  of  the  defendant,  from  the  time  he  took  possession, 
till  dispossessed  by  the  mortgagee.^  Shaw,  C.  J.,  remarked,^ 
that  the  plaintiff,  having  purchased  the  equity,  stood  in  place 
of  the   mortgagor,  with  the  right  of  taking  the  rents  and 

1  Field  V.  Swan,  10  Met.  112.  ^  jtij.  pp.  114^  115. 


214  THE   LAW   OF  MORTGAGES.  [CH.   IX. 

profits  to  his  own  use,  till  the  entry  or  some  equivalent  act 
of  the  mortgagee ;  which  did  not  exist  in  this  case,  but,  on 
the  contrary,  were  expressly  waived  by  the  action  of  the 
mortgagee,  brought  for  the  purpose  of  foreclosing,  and  aver- 
ring him  to  be  disseised  and  out  of  possession. 

38.  From  the  preceding  remarks,  relative  to  the  legal  rights 
and  obligations  connected  with  the  leasing  of  a  mortgaged 
estate,  it  may  be  inferred  that  great  caution  is  desirable,  in 
the  mode  of  creating  a  tenancy,  in  order  to  avoid  any  con- 
flict as  to  the  title  or  the  payment  of  rent.  Mr.  Coventry 
says,^  "  both  the  mortgagor  and  mortgagee  should  join  in  the 
demise.  The  mortgagee  should  'demise,  lease,  and  to  farm 
let,'  and  the  mortgagor  '  grant,  demise,  lease,  ratify,  and  con- 
firm ; '  and  the  rent  should  be  reserved  to  the  mortgagee  so 
long  as  the  premises  shall  remain  in  mortgage ;  and  to  the 
mortgagor  for  the  residue  (if  any)  of  the  term.  The  whole 
legal  estate  is  in  the  mortgagee,  he  therefore  should  be  the 
leasing  party.  The  simple  assent  of  the  mortgagee  to  the 
mortgagor's  granting  leases  would  be  wholly  inoperative  for 
the  purpose  of  transferring  an  interest  to  the  lessee.  Nor 
will  a  lease,  even  made  by  a  mortgagee  (without  the  mort- 
gagor) and  before  foreclosure,  although  he  be  in  possession 
under  the  mortgage,  be  good  in  equity  against  the  mortga- 
gor, unless  it  be  of  necessity  and  to  avoid  an  apparent  loss." 
So  Professor  Greenleaf  says,  that  "  to  the  creation  of  a  valid 
lease  of  an  estate  in  mortgage,  the  concurrence  of  the  mort- 
gagee and  mortgagor  is  essential.  The  mortgagee,  having 
the  legal  estate,  should  demise,  and  the  mortgagor  also  should 
demise  and  confirm.  The  rent  may  be  reserved  generally, 
and  the  covenants  from  the  lessee  should  be  made  with  the 
mortgagee,  and  also  with  the  mortgagor,  severally.  Some- 
times a  power  is  reserved  in  the  mortgage  for  the  mortgagor 
to  appoint  by  way  of  demise,  in  which  case  the  lease  takes 
effect  as  an  appointment  of  the  use  to  the  lessee  for  the  term  : 

1  1  Pf)w.  177,  n.     See  Barney  v.  Adams,  2  Tyrwh.  289  :  Doe  v.  Goldsmith, 
Ibid.  710.  "^  ^ 


CH.  IX.]       ESTATE   OP   THE   MORTGAGOR,   IN   POSSESSION.  215 

in  this  instance,  the  reservation  may  be  general,  and  the  cov- 
enants should  be  entered  into  with  the  mortgagee  and  also 
with  the  mortgagor  severally,  as  where  the  lease  operates  as 
a  common  law  demise.  If  the  mortgage  is  of  leaseholds,  of 
course  the  mortgagor  cannot,  under  a  power  to  lease  in  the 
mortgage  deed,  make  an  under-lease  of  the  legal  estate  with- 
out the  concurrence  of  the  mortgagee."  ^ 

39.  Where  mortgagor  and  mortgagee  join  in  a  lease,  con- 
taining an  express  covenant  by  the  former  for  quiet  enjoy- 
ment, no  covenant  from  both  can  be  implied.^  So,  in  a  lease 
from  mortgagor  and  mortgagee,  reciting  the  mortgage,  the 
reddendum  to  the  mortgagee,  his  executors,  &c.,  during  the 
mortgage,  afterwards  to  the  mortgagor  or  his  executors,  &c. ; 
the  lessee  covenants  to  and  with  the  mortgagee,  and  also  to 
and  with  the  mortgagor,  to  pay  the  rent  "  on  the  several 
days  and  times,  and  in  manner  as  the  same  was  reserved 
and  made  payable."     Held,  a  several  covenant.^ 

40.  A  mortgagee  of  leaseholds  joined  with  the  mortgagor 
in  leasing  a  part  of  the  property  for  the  residue  of  the  term 
at  a  certain  rent,  payable  to  the  mortgagor,  his  executors, 
administrators,  and  assigns.  The  lease  contained  a  provision 
for  reentry,  in  case  of  non-payment  of  rent,  to  the  mortgagor, 
his  executors,  &c. ;  also  a  declaration  that  nothing  therein 
contained  should  defeat,  impeach,  or  determine  the  estate  of 
the  mortgagee  under  his  mortgage,  so  far  as  the  same  affect- 
ed the  entirety  of  the  premises.  After  execution  of  the  deed, 
the  mortgagor  became  bankrupt.  Held,  the  lessee  was  en- 
titled to  the  premises,  free  of  the  mortgage  ;  but  the  mort- 
gagee, and  not  the  mortgagor's  assignee,  was  entitled  to  the 
rent.* 

41.  If  the  mortgagor  and  mortgagee  join  in  a  lease,  and 
the  lessee  covenants  with  the  mortgagor  and  his  assigns,  the 
covenants,  being  collateral  to  the  land,  will  neither  descend 

1  2  Greenl.  Cruise,  112,  n.  "  Harold    v.   Whitaker,   Q.   B.   29, 

2  Smith   V.   Pilkington,   1    Tyrwh.     May,  1846 ;  15  L.  J.  345. 

313.  *  Edwards  v.  Jones,  1  Coll.  Cha.  247. 


216  THE   LAW   OF  MORTGAGES.  [CH.    IX. 

at  common  law  to  the  heir  of  the  mortgagor,  nor  pass  to  an 
assignee  of  the  mortgagee,  under  St.  32  Hen.  8,  but  will  be 
covenants  in  gross,  on  which  actions  may  be  brought  by  the 
mortgagor  or  his  personal  representatives.'^  So,  where  the 
mortgagor  made  a  lease,  reciting  the  mortgage;  and  after 
assignment  brought  an  action  for  rent,  upon  the  covenant ; 
held,  the  covenants  were  in  gross,  and  it  might  well  be  alleged 
in  the  declaration,  that  the  plaintiff  had  no  reversion  at  the 
time  of  the  demise,  and  a  plea,  that  "  the  reversion  was  in 
the  plaintiffs  at  the  time  of  the  demise,  and  before  breach 
the  plaintiffs  had  assigned  it  to  a  third  person,"  was  bad ; 
there  being  no  recital  in  the  lease,  which  constituted  an 
estoppel.^ 

42.  Where  the  mortgagee  leases,  with  the  concun-ence  of 
the  mortgagor,  the  lessee  covenanting  with  both,  to  pay  rent 
to  the  former  till  payment  of  the  mortgage,  and  then  to  the 
latter ;  the  covenant  runs  with  the  land  till  the  mortgage  is 
discharged,  and  then  becomes  a  covenant  in  gross.  While 
the  mortgage  continues,  the  mortgagee  is  the  proper  party  to 
bring  a  suit ;  and  if  payment  of  the  mortgage  is  relied  upon 
in  defence,  it  must  be  pleaded  as  a  defeasance  of  the  cove- 
nant with  the  plaintiff.^ 

43.  Where  it  appears  on  the  face  of  a  lease,  that  the  legal 
estate  is  in  the  mortgagee  or  a  trustee  for  him ;  a  right  of 
entry  reserved  to  the  mortgagor  is  void,  he  being  a  stran- 
ger.^ 

44.  The  mortgagee  may  sometimes  himself  become  a  les- 
see. Thus  it  is  held,  that,  if  the  mortgagee  and  the  mortga- 
gor join  in  leasing,  and  the  former  takes  an  underlease  from 
the  lessee,  the  mortgagee  holds  as  tenant,  not  as  mortgagee, 
and  the  mortgage  is  postponed  to  the  lease.^  So,  in  the  case 
of  Newall  v.  Wright,^  the  mortgagee  was  himself  also  a  les- 

1  Webb  V.  Bussell,  3  T.  R.  393 ;  3  Whitaker  v.  Harrold,  17  L.  J.  Q. 
Stokes  /•.  Russell,  lb.  678.  B.  343,  N.  S. 

■^  I'argeter  i'.  Harris,  7  Q.  B.  Rep.        *  Doe  i'.  Lawrence,  4  Taunt.  23. 
"*J8.  5  Page  V.  Broom,  4  Russ.  6. 

6  3  Mass.  138. 


CH.   IX.]      ESTATE    OF   THE   MORTGAGOR,   IN   POSSESSION.  217 

see  of  the  estate.  Some  of  the  following  observations  of 
course  relate  to  this  peculiar  state  of  facts ;  but  most  of  them 
are  of  a  general  character,  and  throw  light  upon  the  several 
topics  discussed  in  the  preceding  pages  —  the  estate  of  the 
mortgagor  and  of  those  claiming  under  him.  In  that  case, 
Chief  Justice  Parsons  remarks  as  follows:^ — "When  a  man, 
seised  of  lands  in  fee,  shall  mortgage  them  in  fee,  if  there  be 
no  agreement  that  the  mortgagor  shall  retain  possession,  the 
mortgagee  may  enter  immediately,  put  the  mortgagor  out 
of  possession,  and  receive  the  profits ;  and  if  the  mortgagor 
refuses  to  quit  the  possession,  the  mortgagee  may  consider 
him  as  a  trespasser,  and  may  maintain  an  action  of  trespass 
against  him,  or  he  may  in  a  writ  of  entry  recover  against 
him  as  a  disseisor.  But  there  may  be  an  agreement,  that  the 
mortgagor  shall  retain  the  possession  until  the  condition  be 
broken,  which  shall  bind  the  mortgagee;  in  which  case,  the 
mortgagor  may  demise  the  estate  to  a  stranger,  and  receive 
the  rents  to  his  own  use.  And  upon  the  same  principle,  we 
are  satisfied  that  the  mortgagee,  if  he  consent  to  take  a  lease 
from  the  mortgagor,  and  covenant  to  pay  him  rent  until  the 
condition  be  broken,  shall  be  bound  by  his  covenant,  and 
shall  not  be  admitted  to  set  up  his  mortgage  against  the 
lease.  The  demise  is  in  law  an  agreement  that  the  mort- 
gagor shall  retain  the  possession,  and  receive  the  profits  to 
his  own  use.  As  the  lease  is  for  five  years,  (the  case  finding 
that  the  lease  and  mortgage  were  made  at  the  same  time,) 
and  as  the  money  secured  by  the  mortgage  was  to  be  paid 
in  the  same  time,  it  is  apparent  that  the  lease  and  the  mort- 
gage were  intended  to  execute  one  contract ;  and  to  give 
complete  operation  to  both  those  deeds,  it  is  reasonable  to 
suppose  the  mortgage  first  executed.  For  if  the  lease  had 
been  first  executed,  and  the  mortgage  intended  to  control  the 
lease,  no  reason  can  be  given  why  the  lease  was  not  in  fact 
surrendered,  as  of  no  effect  between  the  parties.  It  is  there- 
fore our  opinion,  that  the  execution  of  the  first  mortgage  is 
no  bar  to  the  recovery  of  the  rent  due  on  the  lease.  Sup- 
1  3  Mass.  152-154. 

VOL.    I.  19 


218  THE   LAW   OF   MORTGAGES.  [CH.  IX. 

pose  the  question  to  arise  on  a  lease  made  by  a  man  seised 
in  fee,  who  afterwards  conveys  the  premises  to  the  lessee  in 
fee,  on  condition  that  the  conveyance  be  void,  upon  his  pay- 
int'  a  sum  of  money  to  the  lessee  at  a  future  day.  If  the 
lessor,  havino-  the  reversion  in  fee,  make  an  absolute  convey- 
ance of  the  estate  in  fee  to  the  lessee,  without  doubt  the  term 
is  extin^^uished.  If  he  convey  the  estate  in  fee  to  a  third 
person,  the  rent  shall  pass,  as  incident  to  the  reversion.  But 
if  he  mortgage  in  fee  the  estate  to  a  third  person,  the  mort- 
o-ao-ee  may  receive  the  rent  as  incident  to  the  reversion,  or 
permit  the  mortgagor  to  receive  it  at  his  election.  If  he  do 
no  act  to  show  his  election  to  receive  the  rent,  the  mortgagor 
shall  recover  it  of  the  lessee,  who  cannot  plead  the  mortgage 
in  bar.  But  as  the  mortgagee  cannot  put  the  tenant  out  of 
possession,  if  he  demand  the  rent  of  him,  the  tenant  must 
pay  it  to  him ;  and  if,  after  demand,  the  tenant  shall  pay  it 
to  the  mortgagor,  he  will  pay  it  in  his  own  WTong.  In  the 
case  at  bar,  the  mortgagee  is  the  tenant,  and  he  cannot  de- 
mand the  rent  of  himself.  If  be  refuse  to  pay  it  to  the  mort- 
gagor, he  must  be  considered  as  claiming  the  rent,  if  by  law 
he  may  be  entitled  to  it ;  and  this  refusal  is  a  sufficient  no- 
tice to  the  mortgagor.  The  legal  effect  of  this  reasoning  is, 
that  when  the  mortgagee  shall  refuse  to  pay  the  rent,  the 
rent  is  suspended  until  the  condition  of  the  mortgage  be  per- 
formed or  the  estate  be  redeemed  ;  and  upon  either  event  the 
rent  will  again  become  payable,  if  the  term  has  not  in  the 
mean  time  expired.  And  during  the  suspension,  the  lessee 
will,  as  mortgagee,  be  accountable  for  the  profits  to  the  mort- 
gagor towards  the  payment  of  the  debt,  first  keeping  down 
the  interest;  and  of  the  value  of  the  profits  the  reserved  rent 
will  pri'jid  facie  be  evidence.  If,  however,  the  lessee  shall 
voluntarily  pay  the  rent  to  the  mortgagor,  he  shall  not  after- 
wards be  accountable,  as  mortgagee,  for  the  profits  received 
for  the  same  time." 

45.  The  following  summary  of  the  relations  between  mort- 
gagor and  mortgagee  is  given  by  Mr.  Coote.i     With  what 

1  Coote,  327-330.     See  Smith's  Leading  Cases,  (Am.  ed.)  570,  n. 


CH.  IX.]      ESTATE    OF   THE   MORTGAGOR,   IN   POSSESSION.  219 

qualifications,  if  any,  they  may  be  considered  as  expressing 
the  rules  of  law  upon  this  somewhat  complicated  subject, 
every  reader,  in  view  of  the  numerous  decisions  referred  to 
in  the  present  chapter,  must  decide  for  himself. 

1.  If  the  mortgage  provides,  that  the  mortgagor  may  re- 
tain possession  till  breach  of  condition  ;  he  may  be  regarded 
as  a  tenant  for  years  till  such  breach ;  and,  upon  his  death, 
his  interest  may  vest  in  his  executors,  who  shall  hold  in  trust 
for  the  heirs. 

2.  After  breach  of  condition,  until  payment  of  interest  or 
other  recognition  of  tenancy,  he  is  tenant  at  sufferance,  hav- 
ing rightfully  entered,  but  holding  over  wrongfully. 

3.  If  there  is  no  agreement  for  possession,  and  the  mort- 
gagor remains  in  possession  with  the  mortgagee's  consent ; 
he*  is  strictly  tenant  at  will. 

4.  If,  in  the  latter  case,  the  mortgage  is  assigned  without 
concurrence  of  the  mortgagor,  this  terminates  the  estate  at 
will,  and  makes  the  mortgagor  tenant  at  sufferance  till  pay- 
ment of  interest  or  other  recognition  of  tenancy ;  and  when- 
ever the  mortgagor  is  a  tenant  at  will,  the  death  of  either 
party  terminates  such  tenancy.  Upon  the  death  of  the  mort- 
gagor, if  his  heir  or  devisee  enter  and  occupy  without  recog- 
nition of  the  mortgagee's  title  by  payment  of  interest  or 
otherwise,  this  may  be  treated  as  an  adverse  possession. 
Upon  the  death  of  the  mortgagee,  the  mortgagor  becomes 
tenant  at  sufferance  to  his  representative,  till  some  recogni- 
tion of  tenancy,  and  then  tenant  at  will. 

5.  Wherever  a  tenancy  at  sufferance  exists,  and  even 
where  an  adverse  possession  commences,  as  by  the  entry  of 
the  heir  or  devisee  of  the  mortgagor  without  the  mortgagee's 
consent;  payment  of  interest  is  a  recognition  of  the  mort- 
gagee's title,  and  evidence  of  an  agreement  that  the  mort- 
gagor, or  person  claiming  under  him,  shall  hold  at  will,  and 
a  strict  tenancy  at  will  commences. 

6.  If  the  estate  is  occupied  by  tenants,  and  the  mortgagor 
allowed  to  receive  the  rents,  he  has  been  treated  as  a  receiver, 
but  not  subject  to  account.     The  correctness  of  this  view, 


220  THE   LAW   OF   MORTaAGES.  [CH.   IX. 

however,  has  been  strongly  questioned,  particularly  by  Lord 
Eldon  in  ex  parte  Wilson?- 

46.  In  connection  with  the  subject  now  under  considera- 
tion, it  is  proper  to  give  an  account  of  a  judicial  controversy, 
which  perhaps  is  of  little  practical  importance  in  the  United 
States,  where  leasehold  mortgages  are  of  rare  occurrence; 
but  which  is  found  carried  on  with  much  earnestness  in 
many  English  cases.  The  mortgagor  being  in  general 
treated  as  owner  of  the  estate,  the  question  arose,  whether 
the  mortgagee  of  a  leasehold,  like  an  absolute  assignee,  be- 
came liable  upon  the  covenants  in  the  lease.  The  following 
abstracts  of  the  decisions  will  be  sufficient  to  explain  the 
nature  of  this  discussion. 

"  In  Eaton  v.  Jaques,  Doug.  454,  decided  in  1780,  the  ques- 
tion arose  whether  a  mortgagee  of  the  lessee  of  a  term,  never 
having  taken  possession  under  the  mortgage,  was  liable  as 
assignee  for  rent  in  arrear,  and  it  was  held  by  Lord  Mans- 
field, and  all  the  other  judges  of  the  King's  Bench,  that  he 
was  not.  {j)  It  was  put  upon  the  ground,  that  as  mortgagee 
out  of  possession,  he  was  not  assignee,  because  he  had  not 
all  the  estate,  right,  title,  interest,  &c.,  of  the  mortgagor; 
that  the  mortgage  was  but  a  security  to  the  mortgagee,  the 
legal  estate  still  remaining  in  the  mortgagor.     This  decision 

• 

1  2  Ves.  &  Beam.  252. 


(y)  "In  point  of  fact,  this  case  must  have  existed  for  a  century  past,  in  a 
thousand  instances ;  in  this  great  town,  particularly,  building  leases  have 
been  and  are  perpetually  mortgaged  ;  and  yet  no  instance  has  been  found 
where  the  ground  landlord  has  attem2:)ted  to  charge  the  mortgagee,  not  in 
possession,  with  the  rent  or  covenants.  This  is  a  strong  argument  against 
tlic  plaintiff,  especially  where  the  case  is  so  hard,  so  unjust,  and  unconscion- 
able. Numberless  inconveniences  would  arise,  if  such  a  demand  could  be 
supported.  The  mortgagee  never  asks  whether  the  rent  is  paid  ;  he  only 
looks  to  his  security;  and,  when  the  principal  and  interest  are  paid,  he  re- 
assigns. But  if  the  plaintiff  is  right,  a  mortgagee  might  be  called  upon, 
years  after  such  re-assignment,  for  arrears  or  breaches  of  covenant  during 
the  assignment ;  the  consequences  would  be  terrible."     Doug.  4.59. 


CH.  IX.]      ESTATE    OF   THE   MORTGAGOR,    IN   POSSESSION.  221 

does  not  appear  to  have  been  satisfactory  to  the  profession 
in  England.  Lord  Kenyon  doubted  its  correctness  in  Wes- 
terdell  v.  Dale,  7  T.  R.  311 ;  and  in  Stone  v.  Evans,  Wood- 
fall,  113,  said  he  would  overrule  it  without  the  least  hesita- 
tion ;  and  in  Williams  v.  Bosanquet  and  others,  1  Brod.  & 
Bing.  5  Com.  Law  R.  72,  it  was  formally  overruled  upon  a 
consideration  of  all  the  previous  cases.  It  was  there  held, 
that  when  a  party  takes  an  assignment  of  a  lease  by  way  of 
mortgage,  as  a  security  for  money  lent,  the  whole  interest 
passes  to  him,  and  he  becomes  liable  on  the  covenant  for 
payment  of  rent,  though  he  has  never  occupied  or  become 
possessed  of  the  premises  in  fact.  Vide  Woodfall,  111,  112, 
113;  Powell  on  Mortgages,  233  to  243.  The  doctrine  of 
Eaton  V.  Jaques  is,  that  when  a  lessee  mortgages  his  term, 
his  whole  interest  does  not  pass  to  the  mortgagee ;  that  until 
he  takes  possession,  the  legal  ownership  is  in  the  mortgagor, 
subject  to  the  lien  of  the  mortgagee ;  that  the  mortgagee  of 
course  is  not  assignee,  as  an  assignee  must  take  the  whole 
interest  of  the  lessee.  Williams  v.  Bosanquet,  on  the  con- 
trary, held,  that  the  whole  interest  passes  by  the  mortgage, 
and  that  the  mortgagee  consequently  becomes  assignee,  and 
is  liable  as  such.  This  precise  question  arose  in  the  case  of 
Astor  V.  Hoyt  and  others,  5  Wendell,  603,  where  the  doctrine 
of  Eaton  v.  Jaques  was  considered  as  the  well-settled  and 
established  law  of  this  State.  It  was  there  held,  that  a  mort- 
gagor is  the  owner  of  the  property  mortgaged  against  all  the 
world,  subject  only  to  the  lien  of  the  mortgagee  ;  and  that  a 
mortgagee  of  a  term,  not  in  possession,  cannot  be  considered 
as  an  assignee  ;  but  if  he  takes  possession  of  the  mortgaged 
premises,  he  has  the  estate  cum  onere,  and  is  liable  as  as- 
signee upon  the  covenants  contained  in  the  lease.  When 
the  mortgagee  takes  possession,  he  then  has  all  the  right, 
title,  and  interest  of  the  mortgagor.  Then  he  acquires,  and 
the  rnortgagor  loses  an  estate  liable  to  be  sold  on  execution ; 
he  is  then  substituted  in  the  place  of  the  mortgagor  who  was 
lessee,  and  therefore  is  assignee,  and  liable  as  such."  ^ 

1  Opinion  of  the  Court  iu  Astor  v.  Miller,  2  Paige,  68. 
19* 


222  THE   LAW   OF   MORTGAGES.  [ciI.    IX. 

47.  Mr.  Coote^  gives  the  following  somewhat  fuller  ac- 
count of  the  decisions  upon  this  point.    In  the  case  of  Eaton 
V.  Jaques,2  tried  before  Mr.  Justice  Buller  in  1780,  and  the 
first  case  in  which  the  point  arose  at  law  ;  it  was  held  that 
the  mortgagee  is  not  liable,  unless  he  takes  possession.     The 
question  was  reserved   for  the  Court  of  King's  Bench.     It 
had  been  considered  to  be  clear  law  by  Lord  Chief  Justice 
Holt,^  that  an  absolute  assignment  vested  the  estate  in  the 
assio-nee  before  entry  ;  and  in  equity  the  same  doctrine  had 
been  undoubtedly  applied  to  a  mortgage.     Thus  in  a  case  * 
where  a  lease  had  been  granted  with  covenants  to  repair,  the 
lease  assigned  by  way  of  mortgage,  and  the  mortgagee  had 
never  entered  ;  the  houses  being  greatly  out  of  repair,  the 
lessor  filed   his  bill  against  the  assignee  for  discovery  and 
specific    performance.      The    Court   said,  it  was    the   mort- 
gagee's folly  to  take  an  assignment  of  the  whole  term,  and 
thereby  subject  himself  to  the  covenants ;  but,  being  only  a 
mortgagee  not  in  possession,  the  Court  would  not  assist  the 
plaintiff,  but  leave  him  to  his  remedy  at  law.     In  another 
case  in  equity,^  where  a  lease  had  been  assigned  by  way  of 
mortgage,  but  the   mortgagee   had   not  entered  ;  the  lessor 
recovered  at  law  for  rent.     Whereupon  the  mortgagee  filed 
her  bill  for  relief,  but  it  was  dismissed,  she  being  ill  advised 
to  take  an  assignment  of  the  wJiole  term.      The    Court  of 
King's  Bench,  however,  seemed  to  consider  these  cases  of 
little  weight,  and  decided  that  the  mortgagee  was  not  liable 
before  taking  possession.     Lord   Mansfield  said  : — "  To  do 
justice  between  men,  it  is  necessary  to  understand  things  as 
they  really  are,  and  to  construe  instruments  according  to  the 
intention  of  the  parties.     Can  we  shut  our  eyes  and  say  it 
was  an  absolute  conveyance  ?     It  was  a  mere  security ;  it 
was  not  an  assignment  of  all  the  mortgagor's  estate,"  &c. 
In  this  Willes  and  Ashhurst,  Justices,  coincided.     But  Mr. 
Justice  Buller  went  further,  saying,  he  did  not  agree  that, 

1  Coote,  p.  165.  *  Sparkes  v.  Smith,  2  Vern.  277. 

2  Dou^.  438.  5  piikington  v.  Shaller,  2  Vern.  374. 
2  Cook  V.  Harris,  1  Ld.  Rayra.  367. 


CH.  IX.]      ESTATE   OF   THE   MORTGAGOR,   IN   POSSESSION.  223 

even  if  the  assignment  was  absolute,  the  action  would  lie 
without  possession,  and  added,  "  there  is  no  instance."  In 
Walker  v.  Reeves,^  which  was  a  case  of  absolute  assignment, 
Lord  Mansfield  said:  —  "By  the  assignment,  the  title  and 
possessory  right  passed,  and  the  assignee  became  possessed 
in  law,  and  this  case  is  by  no  means  like  Eaton  v.  Jaques, 
which,  being  a  mortgage,  was  not  an  assignment  for  this 
purpose ;  it  was  a  mere  security.  In  the  case  of  Chinnery 
V.  Blackburne,^  it  was  held  that  the  mortgagee  of  a  ship,  not 
in  possession,  could  not  maintain  an  action  for  freight.  In 
Jackson  v.  Vernon,^  that  such  mortgagee  was  not  liable  for 
goods  furnished  for  the  ship.  In  these  cases  the  doctrine  of 
Eaton  V.  Jaques  was  recognized.  In  Westerdell  v.  Dale,"^ 
Lord  Kenyon  said  :  — "  As  to  the  cases  respecting  a  mort- 
gagee, whether  in  or  out  of  possession,  he  is  the  legal  owner, 
and  must  be  so  considered  in  a  court  of  law,  notwithstand- 
ing his  title  is  subject  to  equitable  interests.  It  is  said  in 
one  of  the  cases,  that  a  mortgagee  is  only  liable  when  in 
possession,  and  that  what  proves  this  point  is,  that  in  charg- 
ing the  mortgagee  it  is  necessary  to  state  in  pleading,  that 
he  entered  and  was  possessed.  But  with  great  deference  to 
the  learned  judge  who  gave  the  reason,  I  doubt  it;  I  con- 
sider those  as  formal  words."  In  Stone  v.  Evans,^  an  action 
against  the  assignee  of  a  lease  by  way  of  a  mortgage.  Lord 
Kenyon  ruled  that  the  defendant  was  liable ;  and  "  as  to  the 
case  of  Eaton  v.  Jaques,  he  would  overrule  it  without  the 
least  reluctance."  In  the  case  of  Mayor,  &c.  v.  Blamire,^ 
the  point  was  discussed,  but  held  unnecessary  to  decide,  for 
the  purposes  of  that  action.  In  the  case  of  Lucas  v.  Com- 
erford,"  a  lease,  with  covenants  for  rebuilding,  &c.,  was  de- 
posited by  the  lessee  with  a  creditor  for  security.  The  exec- 
utors of  the  lessor  filed  a  bill  against  the  creditor  for  specific 
performance  of  the  covenants.  The  defendant  in  his  answer 
admitted  his  liability  upon  the  other  covenants,  but  denied 

1  Doug.  461,  n.  5  Woodf.  113. 

2  1  H.  Bl.  117,  n.  6  8  E.  487. 

3  Ibid.  7  1  Ves.  Jun.  235. 
*  7  T.  E.  302. 


224 


THE    LAW   OF   MORTGAGES.  [cil.  IX. 


that  he  was  bound  to  rebuild.  Lord  Chancellor  Thurlow 
said:  —  "  It  was  no  matter  whether  the  defendant  took  the 
lease  as  a  pledge  or  as  a  purchase  ;  he  could  not  take  the 
estate  and  refuse  the  burden ;  it  was  nothing  to  the  lessor." 
The  prayer  for  specific  performance  w^as  refused,  but  the 
defendant  decreed  to  execute  an  assignment,  in  order  that 
the  plaintiff  might  sue  at  law.  In  the  case  of  Williams  v. 
Bosanquet,^  the  question  was  again  argued  in  Serjeants' 
Inn  Hall  before  ten  of  the  judges,  and  the  authority  of  Eaton 
V.  Jaques  expressly  overruled. 

48.  Mr.  Greenleaf  says  -J  — "  It  is  well  settled,  as  a  general 
doctrine,  that  a  mere  legal  ownership  does  not  make  the 
party  liable  in  cases  like  those  supposed  in  the  text,"  (the 
mortgage  of  a  leasehold  interest,  containing  covenants  by  the 
lessee)  "  without  some  evidence  of  his  possession  also,  or  of 
his  actual  agency.  This  principle  is  clearly  recognized  in 
the  law  of  shipping;  the  rule  being  settled  that  the  mort- 
gagee of  a  ship  does  not  incur  the  liabilities  of  an  owner, 
until  he  takes  possession,  or  actively  interferes  in  the  employ- 
ment of  the  vessel."  "  The  assignee  in  mortgage  of  a  chat- 
tel real,  not  in  actual  possession,  is  considered  as  possessed 
only  as  against  the  assignor,  and  this  by  way  of  estoppel. 
He  is  not  compelled  to  take  possession  ;  he  may  intend  to 
acquire  nothing  more  than  an  equitable  lien,  or  a  title  by 
estoppel,  and  against  purchasers  with  notice.  His  legal  title 
in  that  case  depends  on  a  legal  fiction  ;  and  fictions  of  law 
serve  to  effectuate  the  actual  intent  of  the  parties,  but  never 
to  defeat  it.  Moreover,  it  is  conceded,  that  if  the  mortgagee 
were  to  take  an  assignment  of  all  the  term  except  one  day, 
he  would  not  be  liable  on  the  covenants  of  the  mortgagor  in 
the  original  lease  ;  which  shows  that  even  the  claim  of  his 
liability  stands  on  ground  purely  technical.  But  it  is  clear 
that  before  entry  the  assignee  cannot  bring  trespass  ;  nor  can 
the  assignee  of  a  lessee  take  by  release,  before  entry,  to  en- 
large liis  estate.  Neither  has  a  mortgagee  out  of  possession 
any  interest  which  can  be  sold  on  execution ;  but  the  equity 
1  1  Brod.  &  B.  238.  2  2  Greenl.  Cruise,  110,  ju 


CH.  IX.]       ESTATE    OF   THE   MORTGAGOR,   IN   POSSESSION.  225 

of  redemption  remaining  in  the  mortgagor  is  real  estate, 
which  may  be  extended  or  sold  for  his  debts.  Nor  does  the 
mortgagee  derive  any  profit  from  the  land  until  actual  entry 
or  other  assertion  of  exclusive  ownership ;  previous  to  which 
the  mortgagor  takes  the  rents  and  profits,  without  liability  to 
account.  On  these  grounds,  it  has  been  held  here,  as  the 
better  opinion,  that  the  mortgagee  of  a  term  of  years,  who 
has  not  taken  possession,  has  not  all  the  legal  right,  title,  and 
interest  of  the  mortgagor,  and  therefore  is  not  to  be  treated 
as  a  complete  assignee,  so  as  to  be  chargeable  on  the  real 
covenants  of  the  assignor.  In  New  Hampshire,  it  has  been 
held  otherwise  ;  and  in  Virginia,  also." 


226 


THE   LAW    OF   MORTGAGES. 


[CH.    X. 


CHAPTER  X. 

WASTE   BY    THE   MORTGAGOR   OR   MORTGAGEE,    AND   REMEDIES 
THEREFOR. 


1.  The  mortgagor   cannot    commit 
waste. 

2.  Remedy  by  injunction. 


5.  By  action  at  laAV. 

10.  Injuries  done  by  third  persons. 

11.  Waste  by  the  mortgagee. 


1.  Although  a  mortgagor  in  possession  is  considered  for 
most  purposes  the  owner  of  the  land,  and  as  such  held  en- 
titled to  the  temporary  annual  rents  and  profits ;  yet,  inas- 
much as  the  very  purpose  of  the  mortgage  would  be  defeated, 
by  any  acts  affecting  the  permanent  value  of  the  property, 
the  law  will  in  some  form  interpose,  either  to  prevent  the 
commission  of  waste  by  the  mortgagor,  especially  if  the  debt 
is  thereby  endangered,  or  to  compensate  the  mortgagee  for 
the  value  thus  taken  from  the  land.i  A  judgment,  however, 
for  waste  against  the  mortgagor  will  not  affect  his  right  of 
redemption.^ 

2.  The  usual  process  against  a  mortgagor,  in  relation  to 
the  commission  of  waste,  is  a  preventive  one ;  being  an  in- 
junction from  a  court  of  equity.  It  has  been  sometimes 
questioned,  whether  Chancery  would  thus  interfere.  Thus, 
in  Usborne  v.  Usborne,^  doubts  were  expressed  by  the  Court 
whether  a  mortgagor  should  be  restrained  from  cutting  tim- 
ber, the  mortgagee  being  in  fault  for  leaving  him  in  posses- 
sion ;  but  the  injunction  was  granted.  In  King  v.  Smith,*  it 
was  held  that  the  Court  will  not  interfere,  unless  first  satis- 
fied that  the  security  is  defective.  But  it  seems  to  be  now 
well  settled,  that  the  mortgagee  may  have  an  injunction, 


>  Gray  v.  Baldwin,  8  Blackf.  164. 
^  ranthing  i-.  Barron,  32  Ala.  9. 


a  1  Dick.  75.      See  Van  Wyck  v. 
Alliger,  G  Barb.  507. 
*  -2  Hare,  239. 


CH,  X.]  ESTATE    OP   THE   MOKTGAGOR.  —  WASTE.  227 

even  where  the  debt  is  not  due,  if  the  mortgagor  in  posses- 
sion commits  waste,  or  in  any  way  attempts  to  diminish  the 
value  of  the  property  ;  or,  if  it  consists  of  personalty,  where 
he  is  about  to  remove  it  beyond  the  reach  of  his  creditor. 
Otherwise,  a  fraudulent  mortgagor  might,  at  his  pleasure, 
deprive  the  creditor  of  all  benefit  from  his  mortgage.^  More 
especially,  an  injunction  will  always  be  granted,  where  the 
land  is  scanty  security  for  the  debt.  So  it  will  be  granted 
against  the  destruction  of  underwood,  if  contrary  to  the 
usual  course  of  husbandry ;  though  not  of  underwood  gen- 
erally, even  though  the  mortgagor  is  insolvent  or  a  bankrupt.^ 
But  the  later  cases  hold,  that,  if  the  interest  of  the  estate 
requires  that  the  wood  be  cut,  the  Court  may  make  provision 
for  the  cutting  of  it  upon  the  mortgagor's  giving  security. 
Thus,  where  a  large  proportion  in  value  of  pine  woodland 
was  burnt  over,  and  it  was  proper,  in  order  to  save  the  burnt 
wood  from  rotting,  and  for  the  permanent  benefit  of  the  es- 
tate in  reference  to  the  new  growth,  that  the  burnt  wood 
should  be  cut  off,  the  land  without  the  wood  being  of  small 
value,  and  the  mortgagor  was  proceeding  to  cut  it,  when  the 
mortgagee  obtained  an  injunction  ;  held,  a  reference  should 
be  ordered  to  ascertain  the  value  of  the  wood,  in  order  that 
the  mortgagor  might  give  security.^ 

3.  A  party,  collaterally  liable  for  the  mortgage  debt,  may 
have  an  injunction  against  waste  by  an  assignee  of  the  mort- 
gagor in  possession.  Thus  a  purchaser  of  part  of  the  estate 
mortgaged  may  have  such  injunction,  against  an  assignee 
for  benefit  of  creditors  of  another  part.  The  former  stands 
in  the  light  of  a  surety  for  the  mortgage  debt.*  So  a  mort- 
gagor in  possession,  after  a  sale  under  decree  and  execution, 
will  be  restrained  from  committing  waste.^  But  a  mort-, 
gagor  will  not  be  compelled  to  repair,  where  the  estate  has 

1  Salmon  v.  Clagett,  3  Bland,  180;        ^  Brick  v.  Getsinger,  1  Halst.  Cha. 
5  G.  &  Johns.  314  ;  Murdock,  2  Bland,     391. 

461.  *  Johnson  v.  White,  11  Barb.  194. 

2  1  Pow.  16-5 ;  Humphreys  v.  Harri-        ^  Phoenix    v.    Clark,   2   Halst.   Ch. 
son,  1  Jac.   &  W.   581 ;  Hampton  v.     447. 

Hodges,  8  Vez.  105;  Brown  v.  Stew- 
art, 1  Md.  Ch.  87. 


228  THE   LAW    OF   MORTGAGES.  [CH.    X. 

been  injured  without  his  fault ;  ^  as,  to  rebuild  in  case  of 
destruction  by  fire.^ 

4.  If  a  bill  for  an  injunction  to  stay  waste,  brought  by  a 
mortgagee  against  the  mortgagor,  before  the  debt  is  due, 
contains  a  prayer  for  a  sale  of  the  premises;  such  prayer, 
being  repugnant  to  the  other  allegations,  will  be  rejected  as 
surplusage,  and  will  be  no  bar,  while  pending,  to  another  bill 
for  sale  or  foreclosure.^ 

5.  In  addition  to  the  remedy  by  injunction,  it  has  been 
held  in  many  cases,  that  the  mortgagee  may  also  maintain 
an  action  at  law  against  the  mortgagor  for  waste,  (a)  Thus 
he  is  held  entitled  to  an  action  of  replevin  for  wood  and  tim- 
ber wrongfully  cut.'*  So  in  Massachusetts,  a  mortgagee,  not 
in  actual  possession,  may,  after  condition  broken,  maintain 
trespass  against  the  mortgagor  for  cutting  and  carrying  to 
market  timber  trees.^  But  not  for  cutting  grass,  before 
entry.^  So  in  Maine,  if  a  mortgagor  in  possession  cut 
down  and  carry  away  timber  ti-ees  growing  on  the  land,  the 
mortgagee  may  maintain  an  action  of  trespass  against  him. 
Though,  if  a  lot  of  wild  land  be  purchased,  and  mortgaged 
for  the  price,  it  has  been  made  a  question,  whether  the  mort- 
gagor might  not  set  up  a  general  usage  and  custom  in  the 
country  for  purchasers  in  such  cases  to  fell  the  trees  and 
clear  the  land,  as  amounting  to  a  license  from  the  mort- 
gagee.' So  the  mortgagee  of  timber  lands  may  bring  tres- 
pass or  trover  against  one  who  cuts  and  carries  away  timber, 
or  afterwards  converts  it  to  his  own  use,  though  under  a 
license  from  the  mortgagor,  subsequent  to  the  mortgage.^ 
So,  although  after  such  wrongful  taking  the  plaintiff  took 

1  Campbell  i'.  Macomb,  4  Johns.  Ch.  ^  Page  v.  Robinson,  10  Cush.  99. 

584.  6  Woodward  v.  Pickett,  8  Graj-,  617. 

3  Reid  V.  Bank,  &c.  1  Sneed,  262.  '  Stowell  v.  Pike,  2  Greenl.  3»7. 

8  Murdock,  2  Bland,  461.  «  Frotiiinghani     v.    McCusick,     11 

*  Waterman   v.   Matteson,  4   R.  I.  Shepl.  403. 
539. 


(a)  In  Pennsylvania,  a  statute  so  provides.  Penn.  Stat.  1851,  613. 
See  lliggon  v.  Mortimer,  6  Carr.  &  P.  116;  Farrant  v.  Thompson,  2  D. 
&  K.  :i. 


CHAP.   X.]         ESTATE    OF   THE   MORTGAGOR.  —  WASTE.  229 

from  the  mortgagor  an  assignment  of  his  rights  under  the 
contract  with  the  defendant;  the  plaintiff  not  waiving  liis 
rights  as  mortgagee,  and  never  having  derived  any  benefit 
from  the  contract.^  So  in  Vermont,  if,  after  a  decree  of  fore- 
closm-e,  and  before  the  time  limited  for  redemption,  the  mort- 
gagor cut  and  carry  away  timber,  the  mortgagee  may  recover 
its  value  in  an  action  on  the  case  in  the  nature  of  waste,  or 
in  trover.^  But  a  mortgagee  cannot  maintain  trover  against 
the  mortgagor  or  his  tenant  for  wood  cut  for  fuel,  though 
removed  after  foreclosure,  and  though  the  debt  exceeds  the 
value  of  the  land.^  So,  in  New  Hampshire,  where  there  are 
two  mortgages,  and  the  mortgagor,  or  one  claiming  under 
him,  without  consent  of  either  mortgagee,  cuts  timber  from 
the  land,  and  the  first  mortgage  is  afterwards  discharged, 
the  second  mortgagee  or  his  assignee  may  maintain  an  ac- 
tion of  trespass.*  Thus  a  mortgagor  conveyed  the  land, 
taking  back  a  mortgage  to  secure  the  price,  which  mortgage 
he  afterwards  assigned  to  the  plaintiff.  The  purchaser  be- 
ing in  possession,  the  defendant  cut  timber  under  a  license 
from  him,  without  consent  of  either  mortgagee,  and  the  first 
mortgage  debt  was  afterwards  paid.  Held,  the  plaintiff 
might  maintain  trespass  against  the  defendant.^ 

6.  In  Hitchman  v.  Walton,^  an  action  on  the  case  was 
maintained,  in  favor  of  a  mortgagee  as  reversioner  against 
the  mortgagor's  assignees,  for  injury  to  the  land  by  removal 
oi  fixtures.  And  in  Maine,  if  the  assignee  of  the  mortgagor 
remove  fixtures  from  the  land,  though  erected  after  execution 
of  the  mortgage  by  the  mortgagor ;  the  assignee  of  the  mort- 
gagee, who  held  the  mortgage  at  the  time  of  such  removal, 
may  recover  their  value  in  an  action  of  trespass.'^  The  as- 
sent of  the  mortgagee  to  the  erection  of  such  fixtures  does 
not  vary  his  rights  in  this  respect.^  But  it  has  been  held 
in  Connecticut,  that  a  purchaser  from  the  mortgagor,  of  a 

1  Frotliingham    v.     McCusick,     11        ^  Sanders  v.  Eeed,  12  N.  H.  558. 
Shepl.  403.  «  4  Mces.  &  W.  409. 

2  Langilon  v.  Paul,  22  Verm.  205.  ^  Smith  v.  Goodwin,  2  Grecnl.  173 ; 

3  Wright  V.  Lake,  30  Verm.  206.  Frankland  v.  Moulton,  5  Wis.  1. 
*  Sanders  v.  Reed,  12  N.  H.  558.  ^  5  Wis.  1. 

VOL.   I.  20 


230  THE   LAW   OP   MORTGAGES.  [CH.   X. 

fixture  severed  from  the  land,  has  a  better  title  to  it  than 
the  mortgagee.  Thus,  in  case  of  a  mortgage  of  land,  upon 
which  was  erected  a  grist-mill ;  after  a  decree  of  foreclosure 
by  the  mortgagee,  and  a  judgment  in  ejectment  for  posses- 
sion, but  during  the  time  limited  for  redemption,  and  before 
possession  taken  by  the  mortgagee,  the  mortgagor  severed 
the  stones  from  the  mill,  and  sold  them.  The  mortgagee 
takes  possession  of  the  stones  as  his  property,  and  the  pur- 
chaser brings  trover  against  him.  Held,  the  plaintiff  should 
recover.^ 

7.  In  New  York,  it  has  been  held  that  a  mortgagee,  be- 
fore forfeiture,  cannot  bring  an  action  for  waste  against  the 
mortgagor.  His  interest  in  the  lands  is  contingent,  and  may 
be  defeated  by  payment  of  the  mortgage  debt.  In  this  re- 
spect, he  is  like  a  tenant  for  life,  who  cannot  sue  for  waste, 
because  his  interest  may  never  pome  into  possession.  The 
remedy  is  an  injunction  in  equity.'-^  But  a  more  recent  case 
decides,  that  an  action  on  the  case  will  lie  by  the  holder  of 
a  mortgage,  against  the  mortgagor  or  a  purchaser  from  him, 
for  waste  committed  with  a  knowledge  that  the  value  of 
the  security  will  be  injured  thereby.  As  where  the  premises 
were  a  scanty  security  for  the  debt,  and  a  purchaser  from  the 
mortgagor  took  away  the  fences,  and  cut  down  and  carried 
away  valuable  timber,  with  a  knowledge  of  the  existence  of 
the  mortgage,  and  of  the  insolvency  of  the  mortgagor.  So, 
although  the  primary  motive  of  the  defendant  was  not  to 
injure  the  plaintiff's  security,  but  a  view  to  his  own  emolu- 
ment.^ 

8.  It  is  held  in  New  Hampshire,  that,  if  the  cutting  of 
timber  has  been  expressly  or  impliedly  authorized  by  the 
mortgagee,  when  cut,  it  belongs  to  the  mortgagor ;  other- 
wise, the  mortgagee  may  either  have  an  injunction  in  equity 
or  an  action  at  law,  or  claim  the  timber  itself,  unless  the 
rights  of  third  persons  have  intervened.'^  And  a  similar  rule 
has  been  adopted  in  Maine.     Thus  the  plaintiff  conveyed  a 

'  Cooper  V.  Davis,  15  Conn.  556.  ^  Van   Pelt  v.  McGraw,  4  Comst. 

'■'  I'ettTbon  V.  Clark,  15  Johns.  205,     110. 
207.  4  Smith  v.  Moore,  11  N.  H.  65. 


CH.   X.]  ESTATE   OF   THE   MORTGAGOR. —  WASTE.  231 

portion  of  a  tract  of  timber  land,  of  which  he  was  the  owner 
taking  back  a  mortgage  for  the  price,  and  gave  a  bond  to 
convey  the  remainder,  on  payment  of  a  certain  sum*  but 
nothing  had  been  paid  for  the  land.  The  defendant's  in- 
testate became  assignee  of  the  claim  to  the  land  under  the 
mortgage  and  bond,  and  being,  with  the  knowledge  of  the 
plaintifl,  in  quiet  and  peaceable  possession  of  the  premises, 
cut  timber  and  wood  therefrom  ;  one  third  being  upon  the 
land  described  in  the  bond,  the  rest  on  that  described  in  the 
mortgage.  The  defendant  having  inventoried  the  lumber 
cut,  and  sold  a  part  of  it ;  and  the  plaintiff  having  before  the 
sale  demanded  the  property  of  him;  held,  the  plaintiff  might 
maintain  trover  for  the  value.^  And  in  another  case,^  the 
plaintiff  having  received  a  mortgage  of  timber  land,  and 
the  condition  having  been  broken,  certain  timber  was  cut 
from  it  under  permits  from  the  mortgagors,  but  without  the 
knowledge  or  consent  of  the  mortgagee.  The  defendant 
purchased  the  timber  without  notice  of  the  mortgage,  and 
the  plaintiff  afterwards  seized  it.  By  agreement,  it  was 
subsequently  manufactured  into  boards  and  sold;  the  pro- 
ceeds to  be  subject  to  the  decision  of  the  Court  as  to  the 
legal  right  of  either  party  to  the  same.  The  plaintiff  brings 
assumpsit ;  and  it  was  agreed  that  judgment  should  be  ren- 
dered for  the  plaintiff,  if  the  seizure  of  the  timber  was  legal, 
or  if  he  had  the  right  of  possession  against  the  defendants. 
Judgment  was  rendered  for  the  plaintiff.  The  Court  say  :  — 
"According  to  the  decisions  in  Massachusetts  the  plaintiff  is 
clearly  entitled  to  judgment.  The  principles  established  by 
these  decisions  are  necessary  for  the  security  of  the  mort- 
gagee. It  often  happens,  that  the  timber  upon  wild  or  un- 
improved land  constitutes  its  principal  value.  The  timber 
is  as  much  a  part  of  the  realty  as  the  land  itself.  A  third 
person  purchasing  the  timber,  which  is  a  part  of  the  security, 
takes  it  subject  to  the  paramount  rights  of  the  mortgagee,  as 
much  as  if  he  had  purchased  the  land."  ^ 


1  Btissey  v.  Page,  2  Sliepl.  132. 
'^  Gore  V.  Jenness,  1  Applet.  53. 


3  Gore  V.  Jenness,  1  Applet.   55. 


232  THE   LAW   OF   MORTGAGES.  [CH.  X. 

9.  A  mortgagor,  who  cuts  wood  upon  the  land  after  a 
decree  of  foreclosure,  is  a  trespasser.  Hence,  where  wood 
so  cut  was  attached  by  his  creditors,  and  sold  by  the  sheriff, 
but  remained  on  the  land  till  after  the  right  of  redemption 
had  expired,  and  the  mortgagee  then  entered  and  forbade  its 
removal,  and  sold  and  used  part  of  it  himself ;  held,  the  pur- 
chaser had  gained  no  title  to  the  wood,  and  was  not  bound 
to  pay  for  it.^  And  in  case  of  waste,  committed  after  such 
decree,  an  injunction  will  be  ordered,  though  not  asked  by 
the  bill.2 

10.  It  has  been  held,  that  a  mortgagee  has  not  a  sufficiently 
vested,  immediate,  and  direct  title  to  the  property,  to  main- 
tain an  action  for  injuries  done  to  it  bij  a  third  person^  unless 
they  are  committed  with  the  express  intent  to  wrong  and 
defraud  him,  and  the  mortgagor  is  insolvent  or  unable  to  pay 
the  mortgage  debt.  Thus,  where  an  action  was  brought 
by  the  assignee  of  a  mortgage,  for  prostrating  and  destroy- 
ing certain  buildings  on  the  land,  by  which  the  value  was 
reduced  and  the  plaintiff  greatly  damnified  ;  it  was  held  to 
be  a  fatal  obstacle  to  a  recovery,  that  the  plaintiff  had  not 
alleged  in  the  declaration  the  insolvency  of  the  mortgagor,  or 
his  inability  to  pay  the  mortgage  debt.^  And,  in  another 
case,*  the  Bank  of  Utica  had  a  judgment  against  iNIcBride, 
which  bound  his  lands.  The  plaintiflTs  held  junior  mort- 
gages against  McBride,  which  bound  the  same  lands.  The 
plaintiffs  bring  an  action  against  the  defendant,  alleging  that 
he,  as  sheriff,  in  executing  a  fi.  fa.  issued  at  the  suit  of  the 
Bank  of  Utica,  so  negligently  managed  the  personal  property 
of  McBride,  that  it  did  not  bring  its  full  value  by  $1,000,  so 
that  this  sum  came  in  upon  the  mortgaged  land  and  other 
lands,  and  took  so  much  out  of  the  plaintiffs'  pockets.  It 
was  held,  that  the  action  could  not  be  maintained,  although 
the  Bank  of  Utica  or  McBride  himself  might  bring  a  suit, 
they  being  the  parties  immediately  wronged.  So  the  plain- 
tiff, as  holder  of  a  mortgage,  brought  an  action  against  the 

'  Lull  r.  Mattlicws,  19  Verm.  322.  s  Lane  v.  Hitchcock,  14  Johns.  213. 

*  GocHlmaii  i;.  Kiue,  8  Buav.  379.  *  Bank,  &c.  v.  Mott,  17  Wend.  554. 


CH.   X.]  ESTATE   OF   THE   MORTGAGOR.  —  WASTE.  233 

defendant  for  negligence  in  removing  earth  from  a  hill  adja- 
cent to  the  mortgaged  premises,  whereby  portions  of  the  hill 
were  made  to  slide  down  upon  those  premises,  and  thereby 
greatly  injured  them.  It  was  held,  that  the  action  could  not 
be  maintained,  although  it  might  lie,  if  the  act  charged  had 
been  done  with  intent  to  defraud  the  plaintiff,  and  if  the 
plaintiff  proved  that  the  mortgagor  was  insolvent  or  unable 
to  pay  the  mortgage  debt.^ 

11.  At  law,  a  mortgagee  may  commit  waste,  unless  he 
has  expressly  covenanted  against  it.^  But  equity  will  enjoin 
against  it,  unless  the  security  is  defective,  and  decree  an 
account  of  timber  already  cut.  And .  a  mortgagee  will  be 
required  to  apply  the  value  of  timber  cut,  first  to  the  interest, 
then  to  the  principal,  of  his  debt.^  So  a  mortgagee  must  ac- 
count for  the  proceeds  of  timber  cut  by  a  third  person,  which 
are  received  by  him.'^  But  a  mortgagee  of  land,  containing 
a  mine  previously  wrought,  may  work  such  mine.^  So  a 
mortgagor  cannot  charge  the  mortgagee  in  possession  for 
waste  by  clearing  and  cultivating  the  land,  and  also  with 
the  improved  rent  arising  from  such  clearing ;  though  it 
seems  he  may  claim  either  at  his  election.*^  So  an  assignee 
of  the  mortgagor,  seeking  relief  as  such,  cannot  hold  the 
mortgagee  accountable  for  waste  committed  before  the  as- 
signment.^ 

12.  The  rule  in  equity,  against  the  commission  of  waste 
by  a  mortgagee,  has  been  apphed  to  the  destruction  or  in- 
jury of  buildings.  Thus,  the  bill  being  to  redeem  a  mort- 
gage, on  the  hearing,  an  account  was  decreed,  and  £240 
reported  due  ;  to  which  report  the  defendant  had  excepted. 
The  cause  thus  standing  in  court,  the  Lord  Keeper,  on  a 
motion  and  reading  affidavits  that  the  defendant  had  burnt 
some  of  the  wainscot  and  committed  waste,  ordered   the 

1  Gardner  v.  Heartt,  3  Denio,  232.  *  Gore  v.  Jenness,  1  Apple.  53. 

2  Evans  v.  Thomas,  Cro.  Jac.  172  ;  ^  Irwin  i'.  Davidson,  3  Ired.  Ch.  311. 
but  see  McCormick  v.  Digby,  8  Blackf.  «  Morrison  v.  McLeod,  2  Ired.  Ch. 
99.  108. 

3  Wetherington  v.  Banks,  Sel.  Cas.  ''  Gordon  v.  Hobart,  2  Story,  243 
Cha.  30;  Hanson  v.  Derby,  2  Vern. 

392 ;  Farrant  v.  Lovel,  3  Atk.  723. 
20* 


234  THE    LAW    OP   MORTGAGES.  [CH.  .X. 

defendant  to  deliver  up  possession  to  the  plaintiff,  who  was 
a  pauper,  giving  security  to  abide  the  event  of  the  account.^ 
So,  if  the  mortgagee  unnecessarily  pulls  down  buildings, 
and  erects  new  ones,  without  the  mortgagor's  consent,  he  is 
liable  for  any  consequent  loss  of  rent,  and  will  not  be  allowed 
for  lasting  improvements  and  repairs,  unless  the  result  of  the 
whole  is  to  increase  the  value  of  the  property.^ 

13.  On  a  bill  to  redeem,  the  mortgagor  claimed  that  a 
master,  to  whom  the  case  had  been  referred,  should  have 
allowed  treble  damages  for  waste  committed  by  the  mort- 
gagee, pending  the  bill.  Held,  such  claim  could  be  enforced 
only  by  the  statutory  jremedy.^  (b) 


1  Hanson  v.  Derby,  2  Vern.  392.  ^  Boston,  &c.  v.  King,  2  Cush.  401. 

-  Cootf,  42'J ;  Sandon  v.  Hooper,  6 
Beav.  24(5. 


(b)  Lord  Ilardwicke  thus  sums  up  the  law  relating  to  waste  committed  by 
mortgagee  or  mortgagor.  Where  a  mortgagee  in  fee  in  possession  commits 
waste  by  cutting  down  timber,  and  the  money  arising  by  the  sale  of  the 
timber  is  not  applied  in  sinking  the  interest  and  principal  of  his  mortgage, 
the  Court,  on  a  bill  brought  by  the  mortgagor  to  stay  waste,  and  a  certificate 
thereof,  will  grant  an  injunction.  So,  likewise,  where  there  is  only  a  mort- 
gage for  a  term  of  years,  and  the  mortgagor  commits  waste,  the  Court,  on  a 
bill  by  the  mortgagee  to  stay  waste,  will  grant  an  injunction,  for  they  will 
not  suffer  a  mortgagor  to  prejudice  the  incumbrance.  Farraut  v.  Lovel, 
3  Atk.  723. 


CH.    XI.] 


ESTATE   OF   THE   MORTGAGEE. 


235 


CHAPTER  XL 

ESTATE   OF    THE  '  MORTGAGEE.      NATURE   OF   HIS   TITLE.      CONNEC- 
TION BETWEEN   THE    MORTGAGE    AND    THE   PERSONAL    SECURITY. 


1.  A  mortgage  is  personal  estate.  The 
mortgagee  lias  a  mere  lien  or  pUchje. 

Transfer  of  mortgage  without  the 
debt. 

3.  Assignment  of  the  debt;  whether 
it  passes  the  mortgage  ;  doctrine  upon 
this  subject  in  the  several  States  ;  mort- 
gage to  secure  several  debts,  some  of 
whicli  are  transferred  ;  assignment  of 
different  debts  to  diflerent  persons. 

20.  Tlie  mortgagee  cannot  malie  a 
lease. 

21.  He  has  an  insurable  interest. 
Rights  and  duties  of  parties  in  case  of 
the  insurance  of  mortgaged  property. 

37.  Tlie  assignment  of  a  mortgage  is 


the  assignment  of  an  estate,  not  a  mere 
security. 

38.  Case  of  Martin  v.  Mowlin,  and 
criticisms  tliereupon. 

41.  Joint  mortgagees  ;  their  interest 
in  tlie  mortgage  and  the  personal  secu- 
rity. 

46.  A  mortgage  is  not  subject  to 
legal  process. 

51.  Passes  as  personal  property,  up- 
on the  death  of  the  mortgagee. 

58.  By  what  words  devised. 

59.  Respective  titles  of  licir  and  ex- 
ecutor;  nature  of  the  interest  in  the 
executor's  hands  ;  sale  for  paj-ment  of 
debts,  &c. 


1.  The  proposition  having  been  fully  explained  in  preced- 
ing chapters,  that  the  mortgagor,  notwithstanding  the  mort- 
gage, still  continues  to  own,  instead  of  having  a  mere  pros- 
pective or  contingent  right  to  the  land ;  it  follov^s,  as  a  matter 
of  course,  that  the  mortgagee  has  an  interest  in  the  prop- 
erty mortgaged,  quite  distinct  from  an  ordinary  title  to  land. 
Accordingly  the  doctrine  is  equally  well  established,  that  a 
mortgage,  though  purporting  to  convey  an  estate  in  fee- 
simple,  yet  being  merely  security  for,  or  incident  to,  a  debt,  {a) 


(a)  Upon  this  ground,  where  separate,  mortgages  are  made  of  distinct 
estates,  but  to  secure  one  debt ;  it  is  held,  that  the  unity  of  the  mortgage  is 
to  be  determined  by  the  debt.  Franklin  v.  Gorham,  2  Day,  143.  In  gen- 
eral, where  an  action  lies  for  the  debt,  it  may  also  be  brought  upon  the 
mortgage.  Barroilhet  v.  Battelle,  7  Cal.  450.  Perhaps  no  stronger  ex- 
ception can  be  Ibund  to  the  general  rule  as  to  the  identity  of  the  debt  and 
mortgage,  than  that  involved  in  a  late  decision,  that,  if  the  indorser  of  a  note 


236  THE   LAW   OF   MORTGAGES.  [CH.   XL 

follows  the  nature  of  the  debt  itself,  and,  so  long  as  the  right 
of  redemption  continues,  is  personal  estate.  Both  in  law 
and  equity  the  mortgagee  has  only  a  chattel  interest ;  ^  some- 
times termed,  though  hardly  with  technical  accuracy,  a  chat- 
tel real-  In  common  sense,  he  has  only  a  pledge.^  He  is 
not  the  sub^tanlial  owner.*  (b) 

2.  In  IMartin  r.  Mowlin,^  Lord  Mansfield  is  reported  to 
have  said,  that  "  a  mortgage  is  a  charge  upon  the  land  ;  and 
whati'ver  would  give  the  money,  will  carry  the  estate  in  the 
laud  along  with  it,  to  every  purpose.  The  estate  in  the  land 
is  the  same  thing  as  the  money  due  upon  it.  It  will  be  liable 
to  debts  ;  it  will  go  to  executors ;  it  will  pass  by  a  will  not 

1  Runyan  v.  Mersere.iu,   11  Johns,  v.  Vance,  4  Iowa,  434;  Savage  v.  Doo- 

534;  1  Pow.  252,  n. ;  Kayland  v.  Tlie  ley,  28  Conn.  411 ;  Bryan  v.  Butts,  27 

Justices,  &c.   10  Geo.  05;  Calkins  v.  Barb.  505. 

Calkins,  3  Barb.  305;  Fleet  r.  Youngs,  -  Burrill's  Law  Diet. 

11  Wend.  525;    Waring  i-.   Smith,  2  '^  Silvester  i\  Jarman,  10  Price,  84 ; 

Barb.    Ch.    135  ;    Kinna   v.   Smith,    2  M'Milian  v.  Richards,  'J  Cal.  ot55. 

Green,  Ch.  14 ;  Whitney  v.  French,  25  *  Dougherty  v.  McColgan,  6  Gill  & 

Venn.  OtJ3  ;  Bennett  c.  Taylor,  5  Cal.  J.  275. 

401 ;  Ord  i-.  M'Kee,  Ibid.  515 ;  Crow  ^  2  Burr.  978. 


gives  a  mortgage  to  the  indorsee,  conditioned  to  pay  or  cause  to  he  paid  such 
note ;  the  validity  of  the  mortgage  is  not  affected  by  the  indorsee's  failure  to 
give  the  indorser  the  notice  requisite  to  make  him  liable  upon  the  note. 
Hilton  V.  Catherwood,  10  Ohio,  109.  See,  as  to  the  effect  of  waiver  of  no- 
tice, PhilHps  t'.  Thomp.son,  2  John.  Ch.  418.  The  price  of  land  purchased 
was  paid  by  tlie  indorsement  of  two  notes  of  a  third  person,  secured  by  mort- 
gage, the  condition  of  which  was,  that  the  notes,  when  due,  should  be  paid 
by  the  makers  or  indorser,  otherwise  the  mortgagee's  estate  to  be  absolute. 
The  notes  not  being  thus  paid,  and  the  mortgagee  having  failed  to  hold  the 
indorser  according  to  law,  held,  in  a  suit  for  forecloure,  his  estate  had 
become  absolute.     Zekind  v.  Newkirk,  12  Ind.  544. 

(b)  In  a  late  case,  the  personal  quality  of  a  mortgage  is  expressed  by  the 
following  combined  epithets  :  —  "  Pledge  ;  real  lien  ;  chattel  interest;  chose 
in  action  and  quasi  personal."  It  is  added,  however,  "  As  it  binds  land,  and 
may  lay  the  foun<lation  of  a  title  to  real  estate,  it  assume.^,  in  many  respects, 
the  character  of  a  land  title.  It  is  .so  in  its  origin,  by  deed  ;  in  the  mode  of 
giving  it  notoriety,  by  registration;  in  its  transfer,  by  deed  of  assignment; 
its  discharge,  by  deed  of  release ;  and  in  the  moitgagee's  remedy,  by  writ 
of  entry  against  the  mortgagor  or  other  person  in  possession  under  him." 
Per  Shaw,  C.  J.     Young  v.  Miller,  6  Gray,  153. 


CII.    XI.]  ESTATE    OF    THE    MORTGAGEE.  237 

made  and  executed  with  the  solemnities  required  by  the 
statute  of  frauds.  The  assignment  of  the  debt,  (c)  or  for- 
giving it,  will  draw  the  land  after  it,  as  a  conscqucnee 

nay,  it  would  do  it,  though  the  debt  were  forgiven  only  by 
parol ;  for  the  right  to  the  land  would  follow,  notwithstand- 
ing the  statute  of  frauds."     So  Lord  KecjX'r  Fineli  says: 

"  In  natural  justice  and  equity,  the  principal  riglit  of  the 
mortgagee  is  to  the  money,  and  his  right  to  the  land  is  only 
as  security  for  the  money."  ^  So  Lord  Loughborough  says  : 
—  "  The  real  transaction  is  an  assignment  of  a  debt  from 
A.  to  B. ;  but  that  debt  is  collaterally  secured  upon  a  real 
estate.  The  debt,  therefore,  is  the  principal  thing."  2  And 
Kent,  C.  J.,  says:  —  "Until  foreclosure,  or  at  least  until 
possession  taken,  the  mortgage  remains  in  the  light  of  a 
chose  in  action.  It  is  but  an  incident  attached  to  the  debt, 
and  in  reason  and  propriety  it  cannot  and  ought  not  to  be 
detached  from  its  principal.  The  mortgage  interest,  as  dis- 
tinct from  the  debt,  is  not  a  fit  subject  of  assignment,  {d) 
It  has  no  determinate  value.  If  it  should  be  assigned,  the 
assignee  must  hold  the  interest  at  the  will  and  disposal  of 
the  creditor  who  holds  the  bond.  '  Accessorium  non  ducit, 
sed  sequilur  principale.^  "  ^  (e)     So  it  is  held,  that  if  a  mort- 


1  Per  Finch,  L.  K.,  Thornbrough  v.  v.  Marshall,  7  Humph.  121 ;  Thayer  v. 
Baker,  Cas.  in  Clia.  1,  285.  Campbell,  9  Mis.  280  ;  Garroch  v.  Sher- 

2  Matthews  y.  Wallwyn,  4  Ves.  128 ;  man,   2  Halst.   Cli.  219;   Edwards  v. 
Dudley  v.  Cadwell,  19  Conn.  218.  Varick,  5  Denio,  G64 ;  Bailey  v.  Gould, 

3  Jackson  v.   Willard,  4  Johns.  4.3  ;  Walk.  Ch.  478. 
"Wilson  V.  Troup,  2  Cow.  195 ;  McGan 


(c)  Even  a  qualified  indorsement  of  a  note.  Stewart  v.  Preston,  1 
Branch,  10. 

(d)  The  assignment  of  a  mortgage,  without  the  debt,  creates  at  most  a 
naked  trust.     2  Story's  Eq.  1023,  n. 

(e)  The  generality  of  the  language  found  in  the  text  may  profitably  be 
limited  and  controlled  by  the  following  remarks,  which  in  their  connection 
are  equally  true.  "A  mortgagee,  especially  after  entry  for  foreclosure,  is 
considered  as  having  a  legal  estate,  which  may  be  alienated  and  transferred 
by  any  of  the  established  modes  of  conveyance,  subject  only,  until  fore- 


/ 


•238  THE    LAW    OF    MORTGAGES.  [CH.  XL 

o-a^c  given  to  secure  a  bond  is  assigned,  tiie  assignee  can 
maintain  no  action  upon  it,  unless  he  has  also  an  interest  in 
the  bond ;  because  he  can  have  no  conditional  judgment.'  (/) 
More  especially,  a  deed  of  the  land  from  the  mortgagee  is 
held  not  an  assignment  of  the  mortgage.^ 

1  Webb  V.  Flanders,  32  Maine,  175.         ^  Peters  v.  Jamestown,  &c.   5  Cal. 

334.     But  see  ch.  18. 


closure,  to  be  rc'leemed  by  the  mortgagor."  Per  Shaw,  C.  J-,  Hunt  v.  Hunt, 
14  Pick.  379,380.  "  By  force  of  the  mortgage  deed,  the  mortgagee  be- 
comes seized  of  the  estate,  and  the  mortgagor,  until  discharge  or  foreclosure 
of  the  mortgage,  is  qnasi  tenant  at  will  of  the  mortgagee,  and  so  the  posses- 
sion of  the  mortgagor  is  that  of  the  mortgagee."  Ibid.  382.  So  in  regard 
to  the  possession  of  the  mortgagee,  it  is  said  :  —  "Although  a  mortgagee  may 
enter  at  any  time,  yet,  until  he  enters,  the  land  must  be  con.siderecl  as  be- 
lonjrin^  to  the  morfjjajror."  Per  Parker,  C.  J-,  Hatch  v.  Dwi<:ht,  17  Mass. 
299.  And  it  was  accordingly  held,  that  a  mortgagee,  as  soon  as  he  takes 
possession,  but  not  before,  may  maintain  an  action  against  one  who  erects  a 
dam,  whereby  an  ancient  mill-site  on  the  premises  is  rendered  useless  ;  and 
the  measure  of  damages  will  be  the  interest  on  the  value  of  the  site  or  priv- 
ilege, from  the  time  when  the  plaintifT's  right  of  action  accrued.  Hatch  v. 
Dwight,  17  Mass.  289.  "  If  any  new  act  or  ceremony  is  required,  in  order 
to  change  the  nature  of  the  estate  in  the  mortgagees,  or  to  give  them  a  new 
title,  their  entry  for  the  condition  broken  may  be  considered  as  such  act. 
They  do  in  fact  acquire  by  it  a  new  and  different  estate.  No  lapse  of  time, 
without  such  entry,  would  ever  give  them  an  absolute  estate.  Even  if  the 
mortgagee  enters  before  condition  broken,  no  length  of  possession  under 
such  an  entry  will  make  his  title  absolute.  The  mortgage  then  may  be  con- 
sidered as  conveying  to  the  mortgagee  the  rents  and  profits  of  the  land,  to 
be  received,  if  there  be  no  agreement  to  the  contrary,  toward  the  discharge 
of  his  debt,  whether  the  condition  is  broken  or  not ;  and  also  as  transferring 
to  him  a  right  of  entry  for  the  condition  broken.  On  the  happening  of  that 
event,  if  he  thinks  proper  to  make  such  an  entry,  he  acquires  a  new  right 
to  the  land,  which  can  be  defeated  only  by  payment  of  the  debt,  within 
the  three  years  limited  by  the  statute."  Per  Jackson,  J.,  Goodwin  v.  Rich- 
ardson, 11  Mass.  4  74.  So  it  is  said,  the  mortgagor  has  the  legal  title,  and 
the  mortgagee's  interest  is  not  real  estate,  till  foreclosure  or  entry.  Van 
Duyne  v.  Thayer,  14  Wend.  235,  236  ;  Dougherty  v.  Randall,  3  Mich.  58  ; 
a<'c.  Felch  v.  Taylor,  13  Pick.  139.  But  see  Ritger  v.  Parker,  8  Cush. 
149. 
(/)    I'l"^  following  cases  illustrate  the  general  principle  stated  in  the  text. 


CH.   XI.]  ESTATE    OP    THE    MORTGAGEE.  239 

3.  It  will  be  observed,  that,  in  the  remarks  and  decisions 
above  cited,  as  to  the  personal  nature  of  a  mortgao-e,  and  its 


la  a  bill  for  foreclosure,  it  appeared  that  tlie  dcfetulants,  Bill  and  Crane 
on  the  •26th  of  August,  1818,  mortgaged  to  the  plaintiff  two  distinct  house- 
lots,  to  secure  the  purchase-money  of  one  of  them,  which  was  at  that  time 
conveyed  to  the  mortgagors.  The  mortgage  was  duly  recorded.  April  9, 
1817,  Bill  had  made  a  mortgage,  duly  recorded,  of  one  of  the  lots,  to  Crane, 
to  secure  $1,000.  September  22,  1818,  this  mortgage  was  assigned  to  Fare, 
of  whom  one  of  the  defendants  is  administratrix,  and  claims  by  her  answer 
a  priority  over  the  plaintiff,  as  to  the  lot  contained  in  the  first  mortca'^e. 
Held,  such  claim  should  not  be  sustained.  The  Court  say  :  —  "  The  interest 
of  Crane,  as  mortgagee,  -was  not  at  the  time  of  the  execution  of  the  mort- 
gage to  the  plaintiff,  an  interest  in  the  land,  capable  of  being  the  subject  of 
sale,  either  absolutely  or  by  way  of  mortgage,  distinct  from  the  debt  it  was 
intended  to  secure.  It  does  not  appear  that  the  debt  to  Crane  was  even 
due,  when  the  mortgage  to  the  plaintiff  was  executed  ;  and  it  is  clearly  to  be 
inferred  that  the  mortgage  had  not  been  foreclosed,  or  possession  taken  under 
it.  Though  such  a  mortgage  interest  may  be,  by  way  of  extinguishment, 
absolutely  released  to  the  party  having  the  equity  of  redemption,  yet  it  can- 
not be  conveyed  as  a  still  subsisting  interest,  by  way  of  mortgage,  because 
that  would  separate  the  debt  and  the  pledge,  the  latter  to  reside  in  one  per- 
son, while  the  debt  resided  in  another.  No  such  absolute  release  was  in- 
tended in  this  case ;  and  the  act  of  Crane,  in  uniting  the  mortgage  with 
Bill,  is  rather  to  be  referred  to  the  legal  estate  which  he  derived  from  the 
plaintifi",  than  to  his  interest  as  such  a  mortgagee.  He  had  an  interest, 
which  he  was  capable  of  mortgaging,  and  which  he  no  doubt  intended  to 
mortgage,  and  the  mortgage  deed  can  have  full  operation  by  being  applied 
to  that  interest.  It  cannot  be  applied  to  his  interest  as  a  mortgagee  in  the 
other  lot,  because  he  had  no  interest,  in  that  character,  capable  of  alienation, 
so  long  as  he  retained  the  debt."  Decreed,  that  all  the  premises  be  sold, 
with  a  reservation  of  the  junior  right  of  the  administratrix,  to  the  proceeds 
of  the  lot,  the  mortgage  of  which  was  assigned  to  her  intestate.  Aymar  v. 
Bill,  5  Johns.  Ch.  570,  571,  572.  See  Jackson  v.  Myers,  11  Wend.  533; 
Olmsted  v.  Elder,  1  Seld.  144  ;  Raymond  v.  Raymond,  7  Cush.  605.  In 
Jackson  v.  Bronson,  19  Johns.  325,  which  was  an  action  of  ejectment,  the 
plaintiff,  to  prove  his  title,  offered  in  evidence  a  deed  to  him  from  Earl,  and 
showed  that  the  defendant  was  in  possession  of  a  part  of  the  land  thus  con- 
veyed. The  defendant  proved  a  mortgage  from  the  plamtifl"  to  Earl  of  the 
whole  lot,  to  secure  a  certain  sum  to  the  estate  and  to  indeumify  Earl,  and 
a  deed  from  Earl  to  the  defendant  of  the  premises  in  (piestion.  It  was  held, 
that  the  action  should  be  maintained,  upon  the  ground  that  the  mortgage 


240  THE   LAW    OF   MORTGAGES.  [CH.    XI. 

legal  identity  with  the  debt  which  it  is  made  to  secure,  fre- 
quent reference  is  had  to  the  mode  of  transferring  or  assign- 


• 
was  a  mere  incident  to  the  debt  which  it  was  meant  to  secure,  and  an  abso- 
lute deed  of  the  land  by  the  mortgagee  was  a  mere  nullity.  In  another 
case,  Mr.  Justice  Kent  remarks,  that  the  estate  in  the  land  is  the  same 
thinf  as  the  money  due  on  the  note;  is  liable  to  debts;  goes  to  executors; 
passes  by  a  will  not  conformable  to  the  statute  of  frauds ;  is  transferred 
or  extinguished  by  an  assignment,  or  even  a  parol  forgiving  of  the 
debt.  The  land  is  but  appurtenant  to  the  debt.  Whoever  owns  the  lat- 
ter, is  likewise  owner  of  the  former.  There  must  be  something  peculiar  in 
the  case,  some  very  special  provision  of  the  parties,  to  induce  the  Court  to 
separate  the  ownership  of  the  note  from  that  of  the  mortgage.  In  the  eye 
of  common  sense  and  of  justice,  they  will  generally  be  united.  Upon  these 
"^rounds  Judge  Kent  held,  that  the  delicery  of  a  mortgage,  accompanying  the 
indorsement  of  a  note,  which  it  was  made  to  secure,  passed  the  mortgage 
as  well  as  the  note.  Mr.  Justice  RadclifF,  on  the  other  hand,  held,  that  the 
k'sral  title  to  the  land  did  not  pass,  although  the  assignee  acquired  an  equit- 
able interest  which  a  court  of  equity  would  sustain  ;  that  although,  as  be/iveen 
mortgagor  and  mortgagee,  the  mortgage  was  to  be  regarded  as  personal  es- 
tate, so  as  to  pass  to  executors,  or  be  extinguished  by  jiayment  of  the  debt, 
yet  it  could  not  be  so  regarded,  in  reference  to  a  transfer  to  third  persons. 
In  a  subsequent  case.  Judge  Kent  adheres  to  his  former  doctrine,  that  at 
law,  as  well  as  in  equity,  the  mortgage  is  regarded  as  a  mere  incident  at- 
tached to  the  debt.  Johnson  v.  Hart,  3  Johns.  Cas.  329,  330;  Green  v. 
Hart,  1  Johns.  580 ;  Jackson  v.  Willard,  4  Johns.  43  ;  Runyan  v.  Mersereau, 
11  .lohns.  534.  In  New  Jersey  it  has  been  held,  that  the  principle  above 
stated  does  not  dispense  with  the  necessity  of  a  formal  assignment  of  the 
mortgage  to  one  who  pays  and  takes  up  the  personal  security,  in  order  that 
he  may  defend  against  a  suit  for  the  land  by  the  mortgagor.  And  where  an 
informal  assignment  was  first  taken,  another  formal  assignment,  made  after 
commencement  of  suit,  will  be  inelfcctual  as  a  defence  to  the  action.  In  such 
case  the  mortgagee  holds  the  mortgage  in  trust  for  the  party  who  pays  the 
debt,  but  the  latter  has  no  legal  title.  Den  v.  Dimon,  5  Ilalst.  156.  In  the 
same  State,  it  is  held,  that  the  mortgage  and  debt  may  be  separated  ;  the 
lien  may  be  surrendered  by  other  transactions,  and  the  debt  still  remain. 
Clark  V.  Smith,  Saxt.  121.  Bond  and  mortgage.  The  mortgage  is  invalid 
without  the  bond,  unless  it  be  shown  that  the  mortgagee  is  entitled  to  pos- 
session of  it.  So,  in  case  of  an  assignee  of  the  mort.  Garroch  v.  Sherman, 
2  llalst.  Ch.  219. 
,  In  New  Hampshire,  the  interest  of  the  mortgagee  is  held  not  to  be  within 
I  the  statute  of  frauds,  for  the  reason  that  it  is  a  mere  incident  to  the  debt, 


CH.  XI.]  ESTATE    OP    THE    MORTGAGEE.  241 

ing-  mortgages.  The  prevailing  doctrine  upon  this  subject 
undoubtedly  is,  that  an  assignment  of  the  debt  carries  the 
'mortgage  with  it.  This  rule,  however,  is  by  no  means  uni- 
versal, and  is  subject  to  various  qualifications  in  the  different 
States  of  the  Union. 

4.  In  New  York,  as  has  been  already  seen,  it  has  been 
often  recognized  in  the  earlier  cases.  And  it  has  been  since 
held,  that  an  assignment  of  a  mortgage  by  an  individual  or 
corporation,  without  seal,  passes  the  mortgage  debt.^  So 
an  assignment  of  a  judgment  for  part  of  a  debt  secured  by 
mortgage,  "  with  full  power  to  take  all  necessary  proceed- 
ings for  its  recovery,"  is  an  assignment  of  the  debt,  and 
carries  an  interest  in  the  mortgage  pro  tanto? 

5.  In  Massachusetts,  no  interest  in  a  mortgage  deed  can 
be  transferred  or  assigned,  without  a  written  and  sealed  in- 
strument. Thus  one  Earle,  holding  a  mortgage  from  Ad- 
ams, to  secure  six  notes,  on  the  20th  of  November,  1815, 
deposited  with  a  scrivener  two  of  the  notes  and  the  mort- 
gage, for  the  purpose  of  having  an  assignment  made  to 
Warden,  as  security  for  the  debt  due  from  Earle  to  him. 
November  27th,  Earle  indorsed  one  of  the  notes  to  Hamil- 
ton, as  part  security  for  a  debt,  and  assigned  the  mortgage 
and   the  mortgaged  premises  to    Hamilton,  by  deed   duly 

1  Gillett  V.  Campbell,  1  Denio,  520.        ^  Pattison  v.  Hull,  9  Cow.  747. 
See  Green  v.  Hart,  1  Johns.  580. 


has  no  value  independent  of  the  debt,  and  cannot  be  separated  from  it. 
Southerin  v.  Mendum,  5  N.  H.  432. 

Mortgage  to  secure  several  bonds,  which  the  mortgagee  assigns  to  differ- 
ent persons,  also  assigning  the  mortgage  to  one  of  them.  Held,  pro  tanto, 
an  assignment  of  the  mortgage  to  each.     Stevenson  v.  Black,  Saxt.  338. 

Also,  that  if  the  assignee  of  the  mortgage  and  one  of  the  bonds  purchase 
the  equity  of  redemption,  the  mortgage  is  extinguished  to  the  extent  of  such 
bond,  but  not  as  to  the  others.     lb. 

From  the  text  of  the  following  pages,  it  will  appear,  that  the  decisions 
upon  this  subject  have  been  very  various  in  the  different  States,  and  not 
always  reconcilable  in  the  same  State. 

VOL.   I.  21  .^,  -- 


242  THE   LAW    OF   MORTGAGES.  [CH.    XL 

acknowledged  and  recorded  the  same  day.  November  28th, 
Earle  made  an  assignment  of  the  mortgage,  by  a  writing 
upon  the  instrument  itself,  to  Warden,  to  secure  his  claim- 
and  some  others  for  which  he  was  liable.  The  assignment 
was  not  acknowledged  or  recorded.  The  mortgage  and  the 
two  notes  still  remained  in  the  scrivener's  hands.  Hamilton, 
at  and  before  the  time  of  taking  his  assignment  of  the  mort- 
gage, knew  that  the  mortgage  had  been  left  with  the  scriv- 
ener for  the  purpose  aforesaid.  Held,  upon  these  facts,  the 
title  of  Hamilton  must  prevail.  The  Court  remarked  as  fol- 
lows :  —  "  By  force  of  our  statutes,  regulating  the  transfer  of 
real  estates,  and  for  preventing  frauds,  no  interest  passes  by 
a  mere  delivery  of  a  mortgage  deed,  without  an  assignment 
in  writing  and  by  deed.  An  assignment,  made  by  a  sep- 
arate deed,  without  the  delivery  over  of  the  original  mort- 
gage deed,  conveys  all  the  interest  of  the  mortgagee,  and 
makes  the  grantee  the  assignee  of  the  mortgage."  Nor  did 
the  knowledge  of  Hamilton,  as  to  the  intended  assignment 
to  Warden,  affect  his  title,  any  more  than  if  he  had  known 
that  another  creditor  had  taken  incipient  measures  to  attach 
the  premises,  and  by  his  vigilance  had  obtained  a  prior  lien.^ 
And  in  a  late  case,  being  a  suit  for  foreclosure,  brought  by 
the  indorsee  of  a  mortgage  note,  Shaw,  C.  J.,  says,  the 
proceeding  is  "  so  contrary  to  settled  notions  here,  that  it 
seems  quite  startling."  ^  And,  a  fortiori,  it  is  held,  that, 
where  there  are  two  notes,  an  indorsee  of  one,  without  an 
assignment  of  the  mortgage,  cannot  sue  to  foreclose.^ 

6.  But  in  the  same  State  it  is  held,  that,  where  a  mortgage 
is  assigned  with  one  of  the  two  mortgage  notes,  so  far  as  it 
is  security  for  that  note ;  the  mortgage  shall  be  held,  first  to 
pay  that  note,  then  in  trust  for  payment  of  the  otl>er ;  and 
an  assignee,  having  record  notice,  will  be  bound  to  this  ap- 
plication of  the  security.*  So  where  a  subsequent  legal  trans- 
fer of  a  mortgage  is  attended  with   any  circumstances  of 

»  Warden  v.  Adams,  16  Mass.  233,        ^  Young  v.  Miller,  6  Gray,  152. 
'-^36.2:^7.  4  Bryant  v.  Damon,  6  Gray,  504. 

»  1  oung  V.  Miller,  6  Gray,  163. 


CII.  XI.]  ESTATE   OF   THE   MORTGAGEE.  243 

fraud;  even  a  court  of  law  will  not  sustain  an  action  by  such 
assignee,  against  a  title  of  the  defendant  arising  under  a 
prior  delivery  of  the  note  and  mortgage,  of  which  the  phiin- 
tifF  had  notice.  Thus  Haven  and  Hemmenway,  the  admin- 
istrators of  a  deceased  mortgagee,  in  making  a  settlement 
with  Valentine,  the  guardian  of  his  heirs,  passed  into  his 
hands  certain  notes,  including  the  mortgage  note,  and  also 
the  mortgage  deed.  The  notes  were  not  indorsed,  nor  the 
mortgage  assigned  in  writing,  but  the  administrators  gave 
Valentine  a  power  of  attorney  to  act  in  their  names,  in  or- 
der to  enable  him  to  realize  the  full  benefit  of  the  effects  put 
into  his  hands.  Valentine  entered  for  breach  of  condition 
of  the  mortgage.  The  plaintiff,  a  subsequent  mortgagee, 
produced  a  discharge  of  the  first  mortgage,  made  by  Haven, 
the  surviving  administrator,  many  years  after  the  assignment 
to  Valentine.  The  defendant  claimed  under  a  lease  from 
Valentine,  made  under  a  power  of  attorney  from  the  heirs 
of  the  first  mortgagee,  who  had  become  of  full  age.  The 
plaintiff  had  notice  of  the  assignment  to  Valentine.  It 
was  held,  that  the  delivery  of  the  securities  and  the  power  of 
attorney  vested  in  Valentine  an  equitable  title,  which  could 
not  be  defeated  by  the  fraudulent  transaction  above  stated, 
between  the  plaintiff  and  Haven  ;  and  that  Valentine,  under 
the  circumstances,  might  legally  have  received  the  debt, 
delivered  up  the  note,  and  cancelled  the  mortgage  ;  and  the 
action,  which  was  assumpsit  for  use  and  occupation,  was  not 
sustained.^ 

7.  In  New  Hampshire  it  is  held,  that  the  delivery  of  a 
note,  payable  to  bearer  and  secured  by  mortgage,  passes  the 
mortgage  also,  both  in  law  and  equity.^  And  a  parol  trans- 
fer of  the  debt  and  mortgage  is  good,  until  proceedings  have 
been  had  to  enforce  the  mortgage.  The  assignee  may  sue 
in  his  own  name,  though  he  could  not  upon  the  debt.  And 
the  mortgagee  cannot  maintain  an  action  where  the  assignee 
can.^ 

1  Cutler  V.  Haven,  8  Pick.  490.  ^  Rigney  v.  Lovejoy,  13  N.  H.  247. 

2  Soutlierin  v.  Mendum,  5  N.  H.  420. 


244  THE    LAW    OF   MORTGAGES.  [CH.  XI. 

8.  In  the  same  State,  a  series  of  cases  have  occuiTed,  more 
particularly  relating  to  the  interest  of  the  mortgagee  in  the 
land,  and  the  efiectual  mode  of  transferring  such  interest,  as 
connected  with  the  debt.  Thus,  in  the  case  of  Bell  v.  Morse,^ 
Richardson,  Ch.  J.,  says:  —  "  Under  certain  circumstances,  a 
conveyance  of  the  land  by  a  mortgagee  will  pass  the  debt 
secured.  But  there  are  certain  cases  in  which  a  deed  of  the 
land  by  the  mortgagee  will  pass  nothing.  Thus,  if  the  mort- 
easfee  has  transferred  the  note,  he  cannot  afterwards  convey 
the  land.  It  is  not  enough  to  show  a  deed  from  a  mortgagee, 
in  order  to  prove  that  the  land  passed,  but  it  must  be  made 
to  appear  that  the  debt  passed  to  the  grantee.  At  least,  it 
must  appear  that  the  mortgagee  had  a  right  to  transfer  the 
debt.  As  no  account  is  given  of  the  debt,  the  tenant  is  not 
entitled  to  hold  the  land  against  the  demandant."  And  in 
another  case  in  the  same  State  it  is  held,  that  the  interest  of 
a  mortgagee  is  not,  in  fact,  real  estate ;  but  he  is  entitled  to 
have  it  treated  as  such,  so  far  as  necessary  to  enable  him  to 
prevent  waste,  and  a  diminution  of  the  value  of  the  land,  or 
to  receive  the  rents  and  profits ;  and  to  give  him  the  full  ben- 
efit of  his  security,  and  proper  remedies  for  any  violation  of 
his  rights.  But  not  to  enable  him  to  sell  and  convey  his 
mortgage  interest.  In  this  respect,  the  mortgage  is  a  mere 
chattel,  and  can  be  transferred  only  with  the  debt.  The 
mortgagee's  deed,  alone,  without  foreclosure  or  entry,  and 
purporting  to  convey  the  land  only,  will  not  pass  the  debt, 
and,  therefore,  will  not  pass  the  mortgagee's  interest.  And 
a  doubt  is  expressed  whether  it  would,  if  it  appeared  that  he 
had  possession  and  control  of  the  debt  or  of  the  land,  at  the 
time.2  So  in  later  cases  it  is  held,  that  while,  after  a  mort- 
gagee has  entered,  his  deed  will  transfer  his  right  of  posses- 
sion to  the  grantee,  who,  by  virtue  of  it,  may  defend  against 
a  writ  of  entry  by  the  mortgagor ;  ^  a  deed  before  entry  will 
convey  no  interest,  unless  the  debt  be  transferred  ;  notwith- 

»  C  N.  H.  210 ;  Whittemore  v.  Gibbs,        2  Ellison  v.  Daniels,  11  N.  H.  274 ; 
4  Fo8t.  4»4.  Parish  v.  Gilmanton,  lb.  298. 

8  SmiUi  V.  Smith,  15  N.  H.  05. 


CH.  XT.]  ESTATE    OF   THE   MORTGAGEE.  245 

standing  an  entry  by  the  grantee.  So,  in  other  cases,  that  a 
quitclaim  deed  by  a  mortgagee  will  convey  no  title,  unless 
the  mortgagee  has  entered,  or  the  debt  is  transferred.  In 
the  same  cases  the  question  is  suggested,  whether  a  deed  of 
the  land,  with  warranty,  will  transfer  the  debt.^  So,  if  a 
mortgage  be  conditioned  for  the  payment  of  money,  and 
there  be  no  other  security  for  the  debt  than  the  mortgage, 
whether  a  deed  of  the  land  will  transfer  the  debt.  But 
where  a  mortgage  was  made  to  indemnify  the  mortgagee,  as 
surety  upon  a  bond  for  the  mortgagor,  and  the  mortgagee 
made  a  settlement  with  the  obligee,  to  which  the  mortgagor 
was  a  party,  and  paid  him  the  sum  of  f  500 ;  and  then,  not 
having  entered,  released  all  his  interest  in  the  premises,  but 
made  no  transfer  of  the  debt :  held,  his  deed  conveyed  no 
title.^  So,  where  a  mortgagee  gave  a  quitclaim  deed,  pur- 
porting to  convey  his  interest  in  the  land,  and  the  consider- 
ation expressed  was  paid  for  the  mortgage  interest,  and  the 
parties  believed,  at  the  time,  that  the  mortgagee's  interest  in 
the  mortgage  and  the  debt  would  pass ;  held,  nothing  passed 
by  the  deed.^  [g-) 

1  Weeks   v.  Eaton,   15  N.  H.  145;        ^  Weeks  v.  Eaton,  15  N.  PI.  145. 
Furbusli  V.  Goodwin,  5  Eost.  425.  ^  Eurbusli  v.  Goodwin,  5  Eost.  425. 


(g)  In  the  same  State,  a  mortgage  to  secure  several  notes  remains  secu- 
rity for  the  whole,  till  payment,  in  whosesoever  hands  they  may  be.  John- 
son V.  Brown,  11  Fost.  405.  A  transfer  of  the  mortgage  notes  passes  the 
mortgage,  more  especially  where  the  latter  is  delivered.  Blake  v.  Williams, 
36  N.  H.  40.  An  assignment  of  one  note  passes  the  mortgage  pro  tanto. 
If  the  other  notes  are  paid,  the  assignee  may  sue  to  foreclose.  If  a  part  of 
the  notes  are  assigned  with  the  mortgage,  the  mortgagee  and  subsequent 
assignee  of  the  other  notes  retain  an  interest  in  the  mortgage,  and  the  first 
assignee  cannot  discharge  it.  Page  v.  Pierce,  6  Post.  317.  Tlic  mortgage  is 
presumed  to  go  with  the  note.  Hence,  in  a  suit  by  the  indorsee,  if  the 
plaintiff  is  notified  to  produce  the  mortgage,  its  contents  may  be  shown  by 
other  evidence.     Downer  v.  Button,  6  Post.  338. 

If  a  mortgage  is  given  to  secure  several  notes,  held  by  different  individu- 
als, in  a  suit  on  one  note,  the  judgment  must  be  taken  upon  the  whole  land. 
Johnson  v.  Brown,  11  Post.  405. 
21* 


246  THE    LAW    OF   MORTGAGES.  [CH.  XI. 

9.  In  Maine,  it  is  said,i  —  "A  mortgagee,  before  he  can 
obtain  his  conditional  judgment,  must  file  or  produce  in 
Court  the  bond  or  note  on  which  the  mortgage  is  founded; 
that  the  Court  may  know  what  payments  have  been  made, 
and  how  much  is  due  in  equity  and  good  conscience.  For 
such  sum  only  can  the  conditional  judgment  be  rendered; 
and  if  all  the  debt  has  been  paid,  or  if  the  mortgagee  has 
assigned  the  bond  or  note  for  a  full  consideration,  there  is  no 
reason  why  he  should  have  any  judgment,  though  he  never 
has  assigned  the  mortgage."  Mellen,  C.  J.,  further  re- 
marks :  — ''  The  principles  of  law  upon  this  point  have  never 
been  carried  so  far  "  (as  in  New  York)  "  in  Massachusetts, 
or  in  this  State.  Oar  statute  of  1821,  ch.  36,  seems  decisive 
of  this  question ;  and  to  require  that  the  assignment  of  a 
mortgage  should  be  made  by  deed.  The  form  of  declaring 
in  an  action  by  the  assignee  of  a  mortgage  against  a  mort- 
gagor shows  this ;  it  is  always  alleged,  that  by  the  mortgage 
the  mortgagee  became  seised  in  fee ;  this  very  averment 
shows  that  such  an  estate  cannot  be  conveyed  to  the  assignee 
but  by  deed."  In  the  same  State  it  has  since  been  held, 
that  the  assignment  of  a  debt  by  an  instrument  not  under 
seal  does  not  pass  the  mortgage.^  Also,  that  where  the  debt 
has  been  assigned,  without  the  mortgage,  a  tender  should  be 
made  to  the  mortgagee,  not  to  the  holder  of  the  debt.^  So, 
that  the  transfer  of  a  note  secured  by  mortgage  does  not,  at 
law,  assign  the  mortgage*  But  where  notes  secured  by 
mortgage  have  become  the  property  of  different  persons,  and 
there  has  been  a  foreclosm*e,  the  assignee  of  the  mortgage 
holds  the  property  and  the  net  rents  and  profits,  in  trust  for 
the  owners  of  the  notes,  in  proportion  to  their  respective 
amounts.  And  a  holder  of  a  note  may  recover,  in  equity, 
his  proportionate  part  thereof,  from  such  assignee,  who,  as 
well   as    his   assignor,  the  assignee  of  the  mortgagee,  had 


»  Per  Melleii,  C.  J.,  Vosc  v.  Handy,         '^  Sniitli  v.  Kelley,  27  Maine,  237  ; 

2  Grt-enl.  :J32,  333.  .  Dockray  v.  Noble,  b  Greenl.  278. 

••'  Smith  V.  Kelley,  27  Maine,  237 ;        ^  Dwinel  v.  reriey,  32  Maine,  197. 
Dockray  v.  Noble,  b  CJreenl.  278. 


CH.  XL]  estate   of  the   MORTGA'GEE.  247 

notice  of  the  plaintiff's  title,  without  regard  to  the  price  paid 
by  him  for  the  note.  The  mortgage  and  notes  crealc  and 
manifest  the  trust,  within  the  Rev.  Sts.  ch.  91,  §  31.^  So  an 
assignee  of  the  mortgage  and  one  of  several  notes  holds  in 
trust  for  all  parties  ;  —  notice  is  implied.^ 

10.  In  Vermont,  a  parol  assignment  of  the  debt  passes  the 
mortgage,^  even  though  the  assignee  did  not  know  of  its  ex- 
istence.^ (A)  The  mortgagee  holds  in  trust.^  If  only  a  part 
of  the  notes  are  assigned,  the  assignee  becomes  interested  in 
the  mortgage  pro  ratd.^  But  this  has  been  held  to  depend 
upon  the  intention  of  the  parties.^  If  one  of  several  notes  is 
assigned,  and  the  others  are  subsequently  assigned  with  the 
mortgage,  all  the  assignees  still  have  an  equal  claim  to  the 
benefit  of  the  security.^  But  if  the  first  assignee  tender  pay- 
ment of  the  other  notes,  and  claim  a  transfer  of  the  security, 
this  is  a  waiver  of  his  prior  title  ;  though  he  may  still  enforce 
it  against  the  mortgagor  and  those  claiming  under  him.^  (t) 

1  Johnson  v.  Candage,  31  Maine,  28.         *>  Keyes  v.  Wood,  21  Verm.  331. 

2  Moore  v.  Ware,  38  Maine,  496.  ^  Laiigdon  v.  Keith,  9  Verm.  299. 

3  Pratt  V.  Bank,  &c.,  10  Verm.  294.  »  Belding  v.  Manly,  21  Verm.  550. 
*  Keyes  v.  Wood,  21  Verm.  331.  See  Bridenbecker  v.  Lowell,  32  Barb.  9. 
5  Ibid.                                                          9  Ibid. 


(/i)  On  the  other  hand,  an  assignment  by  the  mortgagee  of  his  interest 
passes  the  right  to  receive  payment  of  the  notes.  Indorsement  of  the  latter 
is  unnecessAvy,  i{  bo)id  Jide  sold  and  delivered.     King  v.  Ilarring,  2  Aik.  33. 

(i)  The  holder  of  the  first  note  brings  a  bill  against  the  mortgagor  and 
his  assignees,  and  the  holder  of  the  other  notes,  -vvho  has  also  taken  a  subse- 
quent mortgage  of  the  land.  Held,  upon  paying  to  the  holder  the  amount 
of  the  other  notes,  the  plaintiff  might  enforce  his  lien  upon  the  whole  land, 
against  all  the  defendants,  as  security  for  all  the  notes.  Belding  c.  Manly, 
21  Verm.  55. 

Mortgage  to  A.  to  secure  five  notes.  A.  assigns  to  B.  two  of  the  notes, 
and  a  corresponding  portion  of  the  mortgage,  to  hold  till  payment  thereof, 
B.  covenanting  upon  payment  to  give  up  to  A.  "all  and  singular  the  re- 
mainder "  (of  the  mortgaged  premises).  A.  afterwards  assigns  to  C.  two  of 
the  other  notes,  and  his  remaining  interest  in  the  mortgaged  property.  B. 
recovers  a  judgment  upon  the  mortgage,  and  C.  brings  a  process  for  par- 
tition. Held,  B.  was  entitled  only  to  a  portion  of  the  premises,  correspond- 
ing in  value  with  his  notes.  Partition  ordered  accordingly.  Wright  v. 
Parker,  2  Aik.  212. 


248  THfe   LAW   OF  MORTGAGES.  .  [CH.  XI. 

11.  In  Connecticut,  an  assignment  of  the  debt  passes  the 
mortgage,  so  that,  upon  the  mortgagee's  death,  no  interest 
in  the  estate  goes  to  his  administrator.^  So  an  assignment 
of  the  mortgage  and  subsequent  delivery  of  the  notes  vest 
the  mortgage  title  in  the  assignee.-  (j)  In  this  State,  with 
reference  to  the  general  principle,  that  the  mortgage  is  a 
mere  incident  to  the  debt,  it  has  been  remarked,^  —  "  This 
doctrine,  both  ancient  and  uniform,  is  founded  in  a  view  of 
the  subject,  not  in  its  form  or  superficies,  but  by  penetration 
to  the  core,  and  regarding  the  contract  of  the  parties,  in  its 
substance  and  intent.  It  was  intended  as  a  security  only, 
and  not  as  a  sale.  The  equitable  doctrine,  concerning  the 
rights  of  mortgagor  and  mortgagee,  has  gradually  been  natu- 
ralized in  the  common-law  code ;  and  by  the  adoption  of 
principles  long  established  in  chancery,  and  tenaciously 
adhered  to,  the  suitors  are  not  driven  from  one  bar,  at  in- 
creased litigation  and  expense,  to  obtain  infallible  relief  at 
another."  {k) 

1  Crosby  v.  Brownson,  2  Day,  425;  ^  Per  Hosmer,  C.  J.,  Clark  v.  Beach, 
ace.  Lawrence  v.  Knapp,  1  Root,  248.      6  Conn.  159. 

2  Dudley  v.  Cad  well,  19  Conn.  218. 


(y)  Mortgage  from  A.  to  B.,  to  secure  him  for  certain  indorsements. 
Upon  A.'s  failure  to  pay  the  notes,  B.  paid  them  by  his  own  notes  indorsed 
by  C.,  leaving  A.'s  notes  still  in  the  bank,  where  they  were  originally.  B. 
also  I'ailing  to  pay  his  notes,  they  were  satisfied  by  a  sale  of  C.'s  property  on 
execution.  Upon  the  commencement  of  suit  against  C,  B.  delivered  to  him 
A.'s  mortgage,  and  assigned  all  his  interest  in  the  property,  taking  back  a 
defeasance ;  but  A.'s  notes  were  not  delivered  to  C.  C.  brings  a  bill  in 
equity  for  the  benefit  of  the  security  given  to  B.  Held,  the  effect  of  the 
transaction  was  to  be  determined  by  the  intention  of  the  parties,  as  gathered 
from  their  situation,  from  the  subject-matter,  and  the  words  used ;  all  which 
showed  a  purpose  to  assign  the  notes,  without  which  the  transfer  of  the 
mortgage  would  be  unavailing ;  and  the  bill  was  sustained.  Bulkley  v. 
Chapman,  9  Conn.  5. 

(A)  111  the  case  of  Clark  v.  Beach  (6  Conn.  159.  See  Norwich  v.  Hub- 
bard, 22  Conn.  587),  from  which  these  remarks  are  taken,  it  was  further 
said  by  Hosmer,  C.  J.,  (who  dissented  from  the  Court,  in  their  judgment 
upon  that  case,)  with  particular  reference  to  the  effect  of  an  entry  by  the 


CH.  XI.]  ESTATE    OF   THE   MORTGAGEE.  249 

12.  In  Pennsylvania,  where  a  mortgagee  transfers  the  ob- 
ligation which  the  mortgage  was  made  to  secure,  an  entry  of 

mortgagee,  upon  the  previous  rights  of  himself  and  the  mort<ni"or :  —  '<  There 
is  nothing  in  the  nature  of  this  tact  per  se  (possession  by  the  mortgafree),  (hat 
adds  to  the  mortgagee's  title,  or  the  title  of  any  other  person.  Before  entry, 
the  grantee  of  land,  except  where  possession  is  requisite  to  commence  a 
right,  has  title,  not  enlarged  by  subsequent  occupation  ;  as  such  occupation 
confers  not  any  right,  but  merely  gives  the  enjoyment  of  a  right  antecedent. 
After  possession,  just  as  before,  tlie  estate  mortgaged  is  a  pledge  only  ;  the 
relation  of  creditor  and  debtor  exists;  the  equity  of  redemption  is  unim- 
paired ;  or  if  the  law-day  has  not  elapsed,  the  payment  of  the  debt  annihi- 
lates all  the  rights  of  the  mortgagee.  All  this  is  true,  until  foreclosure  is 
effected.  Then  it  is,  that  the  mutual  relation  of  the  parties  becomes 
changed.  The  mortgaged  premises,  by  a  legal  appropriation  thereof,  are 
lost  to  the  mortgagor  forever  ;  and  the  mortgagee  has  become  tenant  in 
fee-simple."  The  same  judge  remarked  in  another  case  (Huntington  v. 
Smith,  4  Conn.  237)  :  —  "The  mortgagee,  before  efitrij  or  foreclosure,  has 
at  most  a  cJiose  in  action  and  a  right  to  the  possession,  in  order  to  render  the 
mortgage  available  to  the  payment  of  his  debt." 

But  the  Court  of  that  State,  by  a  majority  of  its  judges,  seems  to  have 
adopted  a  view  of  this  subject  somewhat  different  from  that  above  stated, 
which  is  undoubtedly  the  prevailing  rule  of  the  law.  They  say :  "  The 
mortgagee  is  well  seised  against  the  mortgagor,  and  certainly  against  all 
strangers,  so  as  to  enable  him  to  maintain  trespass  or  ejectment.  This  right 
of  the  mortgagee  appears  essential  to  the  protection  of  the  pledge ;  and 
without  it,  he  would  be  without  security,  —  his  pledge  would  be  useless." 
Clark  u.  Beach,  6  Conn.  151. 

In  the  case  of  Clark  v.  Beach,  (6  Conn.  151,)  the  defendant  in  an  action 
of  trespass  justified  under  the  license  and  authority  of  a  third  person,  who 
was  alleged  to  be  "  the  true  and  lawful  owner  of  the  land,"  and  to  be  "  law- 
fully seised  and  possessed  thereof;  "  and,  to  sustain  the  plea,  offered  in  evi- 
dence a  mortgage  to  such  third  person  from  an  owner  of  the  land.  It  ap- 
peared, that  the  mortgage  had  been  forfeited,  and  possession  surrendered  by 
the  mortgagor  to  the  mortgagee  before  commission  of  the  trespass ;  and  that 
at  that  time  the  mortgagee  was  in  possession.  The  equity  of  redemption, 
however,  still  remained  in  the  mortgagor.  It  was  held  by  the  Court,  (IIos- 
mer,  C.  J.,  dissenting,)  that  the  defence  was  sufficient.  This  decision  rested 
upon  the  ground  of  lawful  ownership  and  seisin  of  the  mortgagee  for  the 
purposes  of  this  case,  and  also  upon  a  statute,  which  provided,  that  in  cases 
of  this  nature  the  defendant  should  pay  treble  damages  and  cost,  unless  he 
should  make  out  a  i\i\e  paramount  to  that  of  the  plaintiff,  the  plaintiff  having 
proved  no  title  whatever  in  himself. 


250  THE   LAW   OF   MORTGAGES.  [CH.  XI. 

satisfaction  by  him  will  not  discharge  the  mortgage  in  favor 
of  a  prior  purchaser,  as  against  the  assignee  of  the  obliga- 
tion ;  but  such  assignee  may  bring  an  action  on  an  exempli- 
fication of  the  mortgage,  upon  which  satisfaction  is  indorsed. 
It  is  otherwise  in  case  of  a  subsequent  bond  fide  purchaser 
of  the  estate,  having  notice  of  the  entry  of  satisfaction,  and 
not  of  the  assignment.^  In  the  same  State,  in  the  case  of 
Donley  v.  Hays,^  it  was  held,  that,  where  several  bonds  are 
secured  by  mortgage,  a  part  of  which  are  assigned  by  the 
mortgagee  at  different  times  and  to  different  persons,  and  the 
premises  are  afterwards  sold  on  an  execution  in  favor  of  the 
mortgagee  against  the  mortgagor ;  the  price  shall  be  applied 
to  all  the  bonds  pro  rat(^,  including  those  which  the  mortgagee 
himself  retains;  that  the  rule,  '^  qui  prior  in  tempore,  potior 
est  in  jure,^'  did  not  apply,  except  in  case  of  successive 
charges  upon  the  same  property,  whereas  in  this  case  the 
several  bonds  were  distinct  things ;  and  great  uncertainty 
and  fraud  might  result  from  allowing  an  inquiry  into  the 
respective  dates  of  the  assignments.  It  was  farther  held, 
that  the  mortgagee  should  have  an  equal  right  with  the  other 
bondholders,  because  the  assignments  involved  no  transfer 
of  the  mortgage  except  by  implication,  and  no  warranty, 
express  or  implied.  (/)  A  mortgage  made  to  a  firm,  to 
secure  a  partnership  debt,  will  pass  by  an  assignment  of 
"  all  debts  due  to  the  firm."  ^ 

13.  In  Indiana,  a  deed  is  necessary  to  pass  the  legal  title 

1  Roberts  v.  Halstead,  9  Barr,  32.  »  Dubois'  &c.,  38  Penn.  231. 

«  17  S.  &  11.  400  ;  ace.  Ferry's,  &c., 
22  Penn.  43. 


{I)  From  this  opinion  of  a  majority  of  the  judges,  Gibson,  C.  J.,  dissented, 
upon  the  grounds,  that  the  assignments  imposed  a  moral  obligation  upon  the 
mortgagee,  which  equity  would  enforce,  though  not  a  legal  one  ;  that,  as  the 
debt  was  the  principal  and  the  mortgage  an  accessory,  the  assignment  of  a 
part  of  the  debt  was  an  assignment  of  the  mortgage,  not  ])ro  rata,  but  pro 
tanlo,  and  the  assignees  purchasers  of  all  the  securities  of  the  mortgagee,  to 
be  used  by  tiieni  as  freely  and  beneficially  as  by  him. 


CH.  XL]  ESTATE    OP   THE   MORTGAGEE.  251 

of  the  mortgagee  ;  ^  but  a  sale  of  the  note  passes  the  mort- 
gage in  equity .2  So  a  transfer  of  one  of  several  notes;  not- 
withstanding a  subsequent  assignment  of  the  mortgage.'^  hn) 
In  case  of  an  assignment  of  one  note,  the  note  first  due  is  to 
be  first  satisfied  from  the  mortgage.^  (w)  So  in  Missouri,'' 
the  mortgage  passes  with  the  note.  If  there  are  more  notes 
than  one,  the  holders  share  proportionally  in  the  mortgage 
security.  But  the  right  is  purely  equitable,  and  will  be 
subordinate  to  the  claim  of  an  innocent  purchaser,  more 
especially  if  he  has  been  misled  by  concealment  of  the  equit- 
able owner.^     In  Ohio,  the  mortgage  passes  with  the  note, 


1  Givan  v.  Tout,  7  Blackf.  210.     See  *  Stanley  v.  Beatly,  4  Iiul.  134. 

Clearwater   v.   Rose,    1    Blackf.    137  ;  ^  Laberge  v.  Cliauvin,  2  Mis.  179. 

Blair  v.  Bass,  4  Blackf.  539.  6  Anderson  v.  Baumgartner,  27  Mis. 

-  Burton  v.  Baxter,  7  Blackf  297.  80. 

3  Hougli  V.  Osborne,  7  Ind.  140. 


(m)  In  Wisconsin,  where  a  mortgage  is  to  secure  notes  for  instalments, 
they  are  to  have  priority  out  of  the  security  in  the  order  of  their  maturity, 
whether  all  remain  in  the  hands  of  the  mortgagee,  or  some  have  been  as- 
signed.    Wood  V.  Trask,  7  Wis.  566. 

(n)  A  mortgagee  by  deed  granted  and  transferred  his  interest  in  the 
mortgage  and  the  land,  with  authority  to  the  grantee  to  collect  the  debt  in 
the  mortgagee's  name,  to  the  grantee's  use.  Held,  a  bargain  and  sale  of  the 
land,  which  passed  the  use,  and  the  statute  transferred  the  possession  ;  that 
the  mortgagee  retained  the  legal  title  to  the  debt,  but  the  equitable  interest 
vested  in  the  grantee,  and  he  might  collect  it  in  the  mortgagee's  name,  for 
his  own  use.  7  Blackf.  210.  Also,  that  the  mortgagee  could  not  maintain 
ejectment.     Ibid. 

A  bill  in  ecjuity  for  foreclosure  alleged,  that  the  mortgagee  had  for  value 
received  assigned  and  indorsed  to  the  complainant  the  note,  to  secure  which 
the  mortgage  was  made,  and  ordered  the  payment  to  be  made  to  him,  and 
delivered  the  mortgage  deed  to  him.  Held,  a  sufficient  description  of  the 
assignment.     Slaughter  v.  Foust,  4  Blackf.  379. 

Where  several  notes,  secui'ed  by  one  mortgage,  and  falling  due  at  differ- 
ent times,  are  assigned  to  different  persons  ;  those  first  assigned  without  the 
mortgage,  and  the  others  with  the  mortgage,  the  last  falling  due  first,  and 
the  latter  assignee  having  no  notice  of  the  first  assignment ;  they  shall  be 
paid  from  the  proceeds  of  the  property  in  the  order  in  which  they  fall  due. 
State  Bank  v.  Tweedy,  8  Blackf.  447, 


252  THE   LAW   OF   MORTGAGES.  [CH.  XI. 

where  the  mortgage  is  delivered.^  So  in  Michigan,  or,  if  a 
part  only  of  the  mortgage  notes  are  assigned,  a  proportional 
interest  in  the  mortgage.^  And  the  assignee  may  foreclose.^ 
So  in  Iowa  and  California.^  And,  in  the  former  State,  the 
assignee  of  the  note  may  maintain  an  action  upon  the  mort- 
gage in  his  own  name.^ 

14.  In  California,  an  assignee  of  one  of  two  mortgage 
notes,  with  the  mortgage,  holds  the  mortgage  as  security 
pro  raid  for  the  other  note  previously  assigned.  The  mort- 
gage itself  is  sufficient  notice  to  bind  him.  And  if  he  dis- 
charge the  mortgage,  such  discharge  will  not  bind  the  holder 
of  the  other  note.^ 

15.  In  Illinois,  no  title  to  the  mortgage  will  pass  by  an 
assignment  of  the  debt,  which  is  not  bond  fide  as  to  the  debt 
itself.  Thus  certain  promissory  notes,  secured  by  mortgage, 
were  made  payable  to  the  administrator  and  administratrix 
of  an  estate.  The  latter  afterwards  married,  and  the  hus- 
band obtained  the  notes  without  any  assignment  or  indorse- 
ment upon  them,  and  transferred  them  to  a  creditor  of  his 
own,  as  collateral  security,  the  proceeds  to  be  applied  to  the 
debt.  Held,  the  circumstances  were  sufficient  to  put  the 
assignee  upon  inquiry  ;  that  he  took  subject  to  the  claims 
of  the  rightful  owners,  and  could  not  maintain  a  bill  to  fore- 
close the  mortgage.'^ 

16.  In  Kentucky,  the  assignment  of  a  note  secured  by 
mortgage  carries  with  it  the  mortgage  lien,  which  continues 
notwithstanding  a  renewal  of  the  note  or  the  giving  of  a  new 
one  to  a  third  person.^  (o)  But  where  a  mortgage  is  made 
to  secure  several  notes,  an  assignment  of  the  mortgage  and 
some  of  the  notes  does  not  pass  the  others.^ 

1  Paine  v.  Fnnch,  4  Ham.  318.  "  McConnell    v.    Hodson,    2    Gilm. 

2  Cooper  V.  Ulmann,  Walk.  Cli.  251.     640. 

»  Alartin  v.  M'Heynolds,  6  Mich.  70.  «  Biirdett  v.  Clay,  8  B.  Monr.  287; 

<  Crow  r.  Vance,  4  Iowa,  434  ;  Ord  Waller  v.  Tate,  4  Ih.  532. 

r.  McKec,  5  Cal.  515.  9  Stockton  v.  Johnson,  6  B.  Monr. 

^  Ibid.  408. 
6  Plielan  v.  Olney,  6  Cal.  478. 


(o)  The  assignee  must  resort  to  the  land  before  calling  on  the  assignor. 
Miles  V.  Gray,  4  B.  Monr.  417. 


CH.  XI.]         ESTATE  OF  THE  MORTGAGEE.  253 

17.  In  Mississippi,  it  is  held,  that  the  mortgage  passes 
by  a  transfer  of  the  note.  The  assignee  may  foreclose  the 
mortgage,  and  the  mortgagee  cannot  release  it.  It  has  been 
questioned,  whether,  in  case  of  several  notes  secured  by  mort- 
gage, the  mortgagee  can  legally  stipulate  with  an  assignee  of 
the  first,  that  he  shall  have  a  prior  lien  to  the  others.^  All 
debts  secured  by  mortgage,  and  due  at  the  date  of  the  de- 
cree of  foreclosure,  are  payable  pro  raid,  unless  the  mort- 
gagee, in  making  an  assignment,  intended  to  give  a  priority. 
A  guaranty  of  the  note  which  first  falls  due  is  not  sufficient 
to  give  it  such  priority.''^  If  bonds  secured  by  mortgage  are 
assigned  as  collateral  security  for  the  assignee's  acceptances, 
which  he  pays,  he  may  foreclose  the  mortgage.^  Where  a 
mortgagee  assigns  a  part  of  the  notes,  he  may  agree  that  the 
assigned  notes  shall  be  first  paid  from  the  mortgage  fund, 
which  agreement  shall  bind  subsequent  assignees  of  the 
other  notes.  And  the  agreement  may  be  implied  from  the 
circumstances  of  the  case,  as  well  as  express.*  If  the  mort- 
gagee is  compelled  to  pay  one  of  the  first  assigned  notes  as 
indorser,  he  cannot,  as  between  him  and  the  first  assignee^ 
claim  a  pro  rata  distribution  of  the  proceeds  of  the  property. 
As  to  such  assignee,  he  does  not  stand  as  a  surety ;  but  the 
debt  is  his  own,  and  the  payment  a  fulfilment  of  his  con- 
tract.^ {p) 

18.  In  Alabama,  the  assignment  of  the  mortgage  note  or 
bond  passes  the  mortgage  in  equity,  and  the  assignee  may 

1  Dick  V.  Mawry,  9  Sm.  &  M.  448 ;  ^  Natchez  v.  Minor,  9  Sm.  &  M. 
Lewis  V.  Starke,  10,  120 ;  Henderson     544. 

V.  Herrod,  lb.  631;  Terry  v.  Woods,  *  Bank,  &c.   v.  Tarleton,  23  Miss. 

6,  139.  173. 

2  Jefferson,  &c.  v.  Prentiss,  29  Miss.  ^  Ibid. 
46. 

(j5)  Where  a  mortgage  was  made  to  secure  several  notes,  which  were 
transferred  to  difFerent  persons,  and  the  mortgagee  gave  to  the  first  assignee 
an  unrecorded  writing,  authorizing  him  to  use  the  mortgage  in  any  manner 
that  he  himself  might  do,  for  the  collection  of  the  note ;  held,  such  assignee 
acquired  no  better  title  to  the  mortgage  than  the  others,  and,  if  he  proceeded 
to  foreclose,  after  the  other  notes  had  matured,  must  share  with  them  the 
proceeds  of  suit.     Henderson  v.  Herrod,  10  Sm.  &  M.  631. 

VOL.  I.  22 


254  THE   LAW    OF   MORTGAGES.  [CH.    XI. 

enforce  it  in  the  name  of  the  mortgagee ;  though  in  case  of 
express  assignment  he  must  do  it  in  his  own  name.^  In  the 
former  case,  he  may  proceed  to  foreclose  in  his  own  name  in 
a  court  of  equity.  The  mortgagee  holds  in  trust  for  him.^ 
In  the  same  State  it  has  been  held,  that,  where  a  vendor  of 
land  takes  several  notes  for  the  price,  retaining  also  a  lien 
upon  the  land,  and  assigns  some  of  the  notes,  with  the  lien, 
retaining  the  rest ;  upon  a  sale  of  the  property,  the  proceeds 
shall  be  applied  to  all  the  notes  pro  raid,  unless  the  assign- 
ment expresses  a  contrary  intent.^  But  another  case  de- 
cides, that,  where  one  of  several  mortgage  notes  is  assigned, 
and  the  mortgage  is  not  sufficient  security  for  the  whole,  the 
assignee  shall  have  priority.  If  the  notes  are  assigned  to 
different  persons,  they  wiU  have  priority  in  the  order  of  their 
assignment.^ 

19.  In  Florida,  the  assignment  of  a  mortgage  must  be  ac- 
companied with  an  assignment  of  the  debt,  in  order  to  make 
the  assignee  a  creditor  of  the  mortgagor.^  (q) 

20.  Upon  the  general  principle,  that  the  mortgagee  is  not 
the  real  owner  of  the  estate,  he  has  no  power  to  lease  the 
premises,  except  in  case  of  absolute  necessity.^  Thus  to  a 
bill  for  reconveyance,  filed  by  mortgagor  against  mortgagee, 
the  defendant  answered,  that  h  *  had  leased  for  five  years,  at 

1  Graham  v.  Newman,  21  Ala.  497 ;        *  Cullum  v.  Erwin,  4  Ala.  452. 
p:manuel  v.  Hunt,  2,  190.  ^  Carter  v.  Bennett,  4  Florida,  283. 

-  Center  v.  P.  &  M.  Bank,  22  lb.  743.  «  Coote,  426.     See  Worster  v.  Great 

3  M'Vay  V.  Bloodgood,  9  For.  547.  Falls,  &c.,  41  N.  H.  16. 

(5)  Where  five  notes  were  made,  secured  by  one  mortgage,  and  three  of 
them  were  assigned  to  A.,  by  whom  a  foreclosure  was  had,  and  the  land  was 
sold,  and  one  of  the  notes  assigned  to  B.,  by  whom,  after  the  foreclosure, 
suit  was  brought  against  the  mortgagor's  administrator  ;  held,  where  several 
notes  are  secured  by  one  mortgage,  all  the  mortgagees  and  their  assignees 
should  be  before  the  Court  before  foreclosure  would  be  decreed ;  and  B.'s 
suit  was  dismissed  without  prejudice.  Wilson  v.  Hay  ward,  2  Florida,  27. 
■  Where  a  mortgage  has  been  given  to  secure  several  notes  payable  at  dif- 
ferent periods,  they  are  entitled  to  satisfaction  from  the  mortgage,  accord- 
ing to  the  order  in  which  they  were  made  payable  ;  and  this,  though  the 
holder  of  a  note  payable  at  a  time  later  than  the  rest  has  taken  an  assign- 
ment of  the  mortgage.     6  Ibid.  171. 


CH.   XI.]  ESTATE   OP   THE   MORTGAGEE.  255 

an  annual  rent,  with  a  covenant  that  after  such  term  the 
tenant  might  hold  four  years  longer,  and  that  he  would  re- 
convey,  if  the  mortgagor  would  grant  such  additional  lease. 
A  decree  at  the  Rolls  in  favor  of  the  defendant  was  reversed 
by  Lord  Macclesfield  on  appeal,  upon  the  ground  that  before 
foreclosure  a  mortgagee  cannot  lease  to  bind  the  mortgagor, 
unless  from  necessity,  and  to  avoid  an  apparent  loss.*  Nor 
is  a  mortgagee  entitled  to  the  remedies  of  a  lessor.  Thus  a 
mortgagee  received  seisin  and  possession  under  a  conditional 
judgment  and  execution,  the  mortgagor  agteeing  to  quit 
whenever  the  mortgagee  should  lease  the  premises,  but  not 
being  actually  ejected.  The  mortgagee  made  a  written  lease 
to  a  third  person.  Held,  the  latter  could  not  maintain  the 
process  provided  by  the  Revised  Statutes  (p.  104),  against 
the  mortgagor,  upon  his  refusing  to  quit.^ 

21.  Although  not  strictly  an  owner,  the  mortgagee  has  an 
insurable  interest  ;^('r)  and  in  this  connection  we  may  prop- 
erly consider  the  respective  rights  of  mortgagee  and  mort- 
gagor, under  the  various  combinations  of  circumstances 
which  are  liable  to  occur  in  reference  to  insurance. 

22.  In  the  first  place,  there  seems  no  reason  to  doubt,  that 
these  parties  may  validly  insure,  each  his  own  interest  in  the 
same  property. 

1  Hungerford  v.  Clay,  9  Mod.  1.  &c.,  13  Mass.  61;  Higginson  v.  Dall, 

2  Larned  v.  Clarke,  8  Cush.  29.  13  Mass.  96 ;    Delahay    v.   Memphis, 
2  See  Kernochan  v.  New  York,  &c.,     &c.,  8  Humph.  684;  Meltenberger  v. 

17  N.  Y.  428  ;  Vernon  v.  Smitli,  5  B.  &  Beacom,   9   Barr,    198  ;    De   BoUe   v. 
Aid.  1;    Tillon   v.  Merchants,   &c.,  7  Pennsylvania,  &c.,  4  Whart.  468;  Mot- 
Barb.  374;  Swift  v.  Vermont,  &c.,  16  ley  v.  Manufacturers',  &c.,  16  Shepl. 
Verm.  805;  Fire,  &c.  v.  Morrison,  11  337. 
Leigh,  354 ;  Locke  v.  North  American, 


(?')  Where  one,  who  is  only  a  mortgagee  answers  to  questions  proposed  to 
him,  that  he  is  the  owner  of  the  estate,  free  of  incumbrance  ;  this  is  a  misrep- 
resentation which  avoids  the  policy ;  more  especially  where  the  rules  of  the 
company  require  a  full  disclosure.  And  parol  evidence  is  inadmissible,  that 
the  company  had  notice  of  the  actual  title.  Jenkins  v.  Quincy,  &c.  7  Gray, 
370.  It  is  said  to  have  been  very  recently  decided,  that  neither  the  subse- 
quent payment  of  the  mortgage,  nor  forgetfulness  of  its  existence,  is  a  suf- 
ficient answer  to  this  defence.  Mass.  Sup.  Jud.  Court,  Worcester,  1863. 
(See  p.  258.) 


256  THE   LAW   OF   MORTGAGES.  [CH.   XL 

23.  An  insurance  by  the  mortgagee  is  merely  an  insurance 
of  the  debt,  which  accordingly  ceases  when  the  debt  is  paid. 
If  a  loss  happens  before  payment,  he  may  recover  to  the 
amount  of  the  debt ;  and  this  although  the  property  remains 
ample  security  for  such  debt,  and  though  the  loss  is  repaired 
by  the  mortgagor.^  {s) 

24.  The  mortgagee  may,  by  agreement,  effect  insurance  at 
the  mortgagor's  expense,  {t)  In  such  cases,  the  premium 
may  be  without  usury  added  to  the  debt ;  because  the  mort- 
gagor is  the  ultimate  gainer.  In  case  of  loss  before  payment 
of  the  debt,  the  sum  payable  to  the  mortgagee  is  the  pro- 
ceeds of  a  security  furnished  by  the  mortgagor,  and  goes  to 
diminish  the  debt,  as  in  case  of  all  collateral  security.  The 
mortgagor  in  fact  pays  the  premium.^ 

1  Carpenter  v.  Providence,  &c.,  16  1 ;  Insurance  Co.  v.  Woodruff,  2  Dutch. 

Pet.  495  ;   Kittredge  v.  Rockingham,  541 ;  Smith  v.  Columbian,  &c.,  5  Harr. 

&c.,  (X.  H.)  Law  Rep.,  Dec.  1849,  p.  (Penn.)  253;  Foster  v.  Equitable,  &c., 

412  ;  King  v.  State,  &c.,  7  Cush.  567 ;  2  Gray,  216. 

Kernochan  v  New  York,  &c.,  5  Duer,  ^  7  Cush.  5. 

(s)  If  the  mortgagee,  without  any  agreement  with  the  mortgagor,  insure  his 
own  interest ;  the  mortgagor  cannot  claim  to  have  the  sum  recovered  under 
such  insurance  deducted  from  the  mortgagee's  charge  for  repairs.  White  v. 
Brown,  2  Cush.  412. 

In  New  York,  where  insurance  is  effected  by  a  mortgagee  as  sucli,  the 
payment  of  a  loss  does  not  discharge  the  mortgage  debt  in  whole  or  in  part, 
but  operates  in  equity,  and,  since  the  code,  at  law,  as  a  transfer  of  the  debt 
and  all  its  securities  to  the  insurer.  Kernochan  v.  New  York,  &c.  5  Duer,  1. 
It  is  held  that  the  insurer  of  a  mortgagee,  upon  payment  of  the  loss,  is  sub- 
rogated to  all  his  rights.  That,  in  a  suit  on  a  policy,  the  rights  of  the  parties 
as  to  subrogation  are  to  be  determined  as  at  the  commencement  of  the  suit. 
And  that  a  creditor,  who  holds  several  mortgage  and  other  securities  for  the 
same  debt,  becomes  a  trustee  for  insurers,  who  pay  a  loss  on  the  mortgaged 
property,  as  to  all  his  securities,  to  the  amount  paid.  Insurance  Co.  v.  Wood- 
ruff, 2  Dutch.  541. 

(<)  In  an  action  by  tiie  mortgagee,  parol  evidence  of  such  agreement  is 
admissible,  as  not  varying  a  written  contract,  and  as  material,  in  showing 
that  the  mortgagor  was  entitled  to  have  the  amount  of  the  policy  applied  to 
the  debt,  and  that  therefore  the  insurers  have  no  right  of  subrogation  in  re- 
spect of  the  mortgage.  Kernochan  v.  New  York,  &c.  1 7  N.  Y.  428.  Whether 
the  insurers  had  notice  of  the  agreement  or  not,  the  insurance  is  of  the  prop- 
erty, and  not  the  debt,  though  it  was  through  the  debt  that  the  mortgagee 
derived  his  insurable  interest.    Ibid. 


CH.  XI.]  ESTATE    OF   THE   MORTGAGEE.  257 

25.  But  it  is  truly  said  by  Judge  Story ,i  referring  of  course 
to  cases  where  the  insurance  is  not  effected  expressly  for  the 
mortgagee's  benefit :  — "  We  know  of  no  principle  of  law 
or  of  equity,  by  which  a  mortgagee  has  a  right  to  claim 
the  benefit  of  a  policy  underwritten  for  the  mortgagor  on  the 
mortgaged  property,  in  case  of  a  loss  by  fire.  It  is  not  at- 
tached or  an  incident  to  his  mortgage.  It  is  strictly  a  per- 
sonal contract  for  the  benefit  of  the  mortgagor,  to  which  the 
mortgagee  has  no  more  title  than  any  other  creditor."  ^  And 
the  clause  '  for  whom  it  may  concern,'  has  been  held  to  make 
no  difference  in  this  respect.^  (w) 

26.  Again,  —  subject  of  course  to  any  express  rule  of  the 
company  to  the  contrary,  —  the  mortgagor  may  obtain  insur- 
ance, and  may  recover  the  full  amount  of  his  policy,  not- 
withstanding the  incumbrance.  So  it  is  held,  that  he  may 
insure  to  the  full  value  of  the  property.*  And  even  though 
his  equity  of  redemption  has  been  seized  on  execution.  Nor 
will  a  sale  on  execution  divest  his  insurable  interest.^ 

27.  And  the  mortgagor  may  effect  insurance,  payable  to 
the  mortgagee,  which  is  an  insurance  of  the  mortgagor's  in- 
terest, with  an  irrevocable  power  of  attorney  or  assignment 
to  the  mortgagee,  as  further  security,  to  receive  the  insur- 
ance, (v)     In  such  case,  the  whole  amount  must  be  paid, 

1  Columbia,  &e.  v.  Lawrence,  10  Pet.  *  Carpenter  v.  Providence,  &c.,  16 
512;  ace.  Lynch  v.  Dalzell,  4  Bro.  Pet.  4"J5;  Kittredge  v.  Rockingham, 
Pari.  431.  &c.   (N.  H.)  Law  Rep.,  Dec.  1849,  p. 

2  Ace.  Nichols  v.  Baxter,  5  R.  1. 491.  412. 

3  McDonald  r.  Black,  20  Ohio,  185;  ^  Strong  v.  Manufacturers',  &c.  10 
Vandegraaflf"  v.  Medlock,  3  Port.  389;  Pick.  41. 

Carter  v.  New  York,  &c.  8  Paige,  437. 


(u)  The  same  principle  has  been  applied,  as  between  a  mortgagor  and  an 
execution  purchaser  of  his  interest.     Gushing  v.  Thompson,  4  Red.  496. 

(v)  In  such  case,  the  mortgagee  is  not  an  assignee  of  the  policy,  but,  in 
reference  to  the  liability  of  the  insurers,  is  bound  by  any  subsequent  act  of 
the  mortgagor.  Grosvenor  v.  Atlantic,  &c.,  17  N.  Y.  391 ;  Loring  v.  Manu- 
facturers', &c.,  8  Gray,  28.  But,  where  a  policy  is  assigned  to  the  mort- 
gagee, he  may  recover  in  case  of  loss,  notwithstanding  a  violation  of  the 
conditions  of  the  policy  by  the  mortgagor.     Grosvenor  v.  Atlantic,  &c.,  5 

Duer,  517. 

22* 


258  THE   LAAV   OF   MORTGAGES.  [CH.   XI. 

though  the  mortgage  debt  has  been  extinguished.     The  loss 
is  then  received  by  the  mortgagee  from  a  fund  placed  in  his 


Where  an  assignment  of  a  policy  is  made  to  a  mortgagee,  with  the  knowl- 
ed^e  and  assent  of  the  company,  the  assignor  ceases  to  have  the  power  to 
defeat  the  rights  of  the  assignee.  He  cannot  discharge  an  action  on  it, 
commenced  in  his  own  name ;  and  a  payment  to  him  would  be  of  no  avail. 
Pollard  V.  Somerset,  &c.,  42  Maine,  221.  See  Carter  v.  N.  Y.  &c.,  4  Paige, 
437.  But  the  action  must  be  in  the  name  of  the  assignor,  unless  there  be 
an  express  promise  to  the  assignee.     Ibid. 

An  assignment  of  a  policy,  issued  by  a  mutual  fire  insurance  company, 
made,  with  the  assent  of  the  insurers,  to  a  mortgagee,  on  his  written  prom- 
ise to  pay  all  future  assessments,  and  that  the  property  shall  continue  sub- 
ject to  the  same  lien  for  the  payment  of  assessments  as  before,  constitutes  a 
new  contract  between  the  mortgagee  and  the  insurers,  which  is  not  affected 
by  the  mortgagor's  subsequent  alienation  of  the  equity  of  redemption,  nor 
by  his  grantee's  obtaining  subsequent  insurance  thereon.  Foster  v.  Equi- 
table, &c.,  2  Gray,  216.     See  Peabody  v.  Washington,  &c.,  20  Barb.  339. 

If  the  mortgagor  covenants  to  keep  the  premises  insured,  the  mortgagee 
has  an  equitable  lien  on  the  money  due  by  the  policy.  Carter  v.  New  York, 
&c.,  4  Paige,  437  ;  Carter  v.  Rockett,  8  Paige,  438.  If  the  covenant  be,  to 
rebuild  with  the  money  recovered  for  insurance,  the  mortgagee  has  such 
lien  for  any  amount  which  cannot  be  collected  by  foreclosure  and  sale. 
Thomas  r.  Van  Kaff",  6  Gill  &  J.  372. 

Numerous  cases  have  arisen,  in  construction  of  the  almost  invariable  pro- 
vision in  policies  of  insurance,  that  any  concealment  or  misrepresentation  in 
reference  to  the  title  shall  avoid  the  policy.  (See  p.  255.)  A  party  is  re- 
sponsible for  the  misrepresentation  of  his  agent,  made  in  good  faith,  in  refer- 
ence to  incumbrances.     Smith  v.  Empire,  &c.,  25  Barb.  497. 

An  unrecorded  mortgage,  though  made  by  a  prior  owner,  is  an  incum- 
brance, within  the  meaning  of  an  answer  to  the  question  proposed  by  an 
insurance  company,  whether  the  property  is  incumbered.  Hutchins  v.  The 
Cleveland,  &c.,  11  Ohio  St.  477  ;  Packard  v.  Agawam,  &c.,  2  Gray,  334. 

A  policy  upon  real  and  personal  estate,  accomjianied  by  only  one  pre- 
mium note,  stipulated,  that,  if  the  application  did  not  contain  a  full  expo- 
sition of  all  the  facts  in  regard  to  the  title,  &c.,  the  policy  should  be  void. 
In  answer  to  an  inquiry  "  whether  the  property  was  incumbered,  to  whom, 
and  what  amount,"  the  application  stated  "  About  S4,000  to  A.  B."  In 
fact,  there  was  then  a  mortgage  on  the  whole  property,  to  A.  B.  for  S3,600, 
and  another  on  the  real  estate  to  J.  P.  for  $1,100.  Held,  as  the  contract 
was  entire,  the  lien  on  the  whole  property  was  affected  by  the  misrepresen- 
tation, and  the  policy  was  wholly  void.    Brown  v.  People's,  &c.,  11  Cush.  280  ; 


CH.  XI.]  ESTATE   OF   THE   MORTGAGEE.  259 

hands  for  a  special  purpose,  which  has  been  accomplished  • 
it  is  the  proceeds  of  an  insurance  of  the  mortgagor's  interest 


ace.  Smith  v.  Empire,  &e.,  25  Barb.  497;  Friesmuth  v.  Agawam,  &c.,  10 
Cush.  588.  So,  where  the  answer  was,  "  about  $3,000,"  when  there  was  a 
mortgage  for  $4,000  ;  held,  the  misrepresentation  avoided  the  policy.  Hay- 
ward  V.  New  England,  &c.,  10  Cush.  444. 

A  statement,  that  there  are  no  incumbrances  but  a  particular  mort"a"e, 
is  a  warranty  against  other  incumbrances;  and  such  warranty  is  broken 
and  the  policy  avoided,  by  the  existence  of  another  mortgage.  Smith  v. 
Empire,  &c.  25  Barb.  497.  Nor  does  it  make  any  difference  that  there  was 
a  mortgage  prior  to  the  one  disclosed,  but  the  second  mortgagee  was  to 
apply  the  payments  to  such  mortgage,  and  had  placed  his  notes  and  mort- 
gage in  A.'s  hands  for  that  purpose,  and  that  the  second  mortgage  was 
afterwards  increased  to  the  amount  of  the  first.  Battles  v.  York,  &c.,  41 
Maine,  208. 

An  application  for  insurance  in  a  mutual  fire  insurance  company  stipu- 
lated, that  the  statements  therein  were  correct  "  so  far  as  regards  the  risk." 
Another  clause  in  the  application,  to  which  the  policy  was  expressly  made 
subject,  provided,  that  the  misrepresentation  of  material  facts  would  destroy 
any  claim  for  a  loss.  The  application  contained  an  untrue  representation 
that  the  properly  was  unincumbered.  Held,  the  policy  was  void,  and  the 
express  covenant  as  to  the  "  risk  "  did  not  limit  the  assured's  responsibility 
for  other  material  misrepresentations.  Friesmuth  v.  Agawam,  &c.,  10  Cush. 
588.  A  failure  to  disclose  a  mortgage  avoids  the  policy,  although  a  jury 
find  that  the  misrepresentation  was  not  material  to  the  risk,  and  there  is 
evidence  tending  to  show,  that  the  mortgage  was  disclosed  to  the  agent  of 
the  company  by  whom  the  application  was  filled  up.  Bowditch,  &c.  v. 
Winslow,  3  Gray,  415. 

The  plaintiff,  in  an  application  for  insurance,  called  the  property  "  his," 
but  stated  it  was  incumbered.  Two  mortgages  then  existed  on  the  estate, 
given  by  a  former  owner,  whose  equity  of  redemption  had  been  sold  on  ex- 
ecution, before  the  plaintiff  acquired  the  estate.  Held,  as  the  plaintiff  had 
a  legal  right  to  redeem  all  these  incumbrances,  there  was  no  misrepresenta- 
tion of  title.     Buffum  v.  Bowditch,  &c.,  10  Cush.  540. 

If  a  representation  as  to  incumbrances  is  untrue,  but  not  fraudulent,  and 
the  agent  of  the  underwriter  knows  the  facts^  and  niites  the  statement  as 
made  from  his  own  knowledge,  but  fails  to  give  it  truly ;  such  misrepresenta- 
tion will  not  avoid  the  policy,  although  the  statement  is  adopted  and  signed 
by  the  insured.     Hartford,  &c.  v.  Harmer,  2  Ohio,  (N.  S.)  452. 

Where  it  was  agreed  between  the  mortgagors  and  the  mortgagee  that  the 
latter,  as  such,  should  insure  the  premises  for  their  benefit  and  at  their  ex- 


260  THE   LAW   OF   MORTGAGES.  [CH.   XL 

by  a  contract  with  hira,  on  a  consideration  made  by  him,  and 
assigned  to  the  mortgagee.  Of  course  the  mortgagee  receives 
it  to  the  use  of,  and  accounts  for  it  with  the  mortgagor.  If 
the  debt  has  not  been  paid,  the  money  goes  to  pay  it  pro 
tanto,  and  is  therefore  so  applied  to  the  mortgagor's  benefit.^ 
28.  The  foregoing  points  are  further  illustrated  by  a  late 
case  in  Massachusetts.  Insurance  was  effected  upon  mort- 
gaged real  estate,  payable  to  the  mortgagee,  in  a  company, 
the  by-law"s  of  which  provided,  that  no  mortgaged  estate 
should  be  deemed  alienated,  so  as  to  avoid  the  policy,  until 
foreclosure ;  and  any  policy,  payable  to  a  mortgagee,  should 
continue  so  payable,  notwithstanding  a  subsequent  alienation 
of  the  estate.  A  third  person  purchased  the  equity  of  re- 
demption, and  took  an  assignment  of  the  mortgage  and  the 
policy,  after  which  a  loss  accrued.  Held,  the  mortgage  was 
merged  in  the  fee,  and  no  action  would  lie  on  the  policy.^ 
Shaw,  C.  J.,  says  :  ^  —  "  The  insurance  was  not  upon  the  in- 
terest of  Macomber  (the  mortgagee)  ;  but  the  undertaking 
to  pay  him  was  a  collateral  and  derivative  contract,  growing 
out  of  the  principal  contract  with  the  assured,  by  which  the 
company  stipulated  to  pay  to  the  appointee  of  the  assured, 
instead  of  paying  to  the  assured  himself.  The  ordinary 
effect  of  such  a  contract  between  the  three  parties  is,  that  if 
the  assured,  whose  property  and  interest  alone  are  covered, 
should  aliene  before  a  fire,  he  would  sustain  no  damage, 
there  would  be  no  loss,  for  which  the  insurers  would  be  re- 
sponsible, and  therefore  the  contingency,  upon  which  the 

1  King  V.  State,  &c.  7  Cush.  5-7.  ^  Macomber  v.  Mutual,  &c.,  8  Cush. 

-  Macomber  v.  Mutual,  &c.,  8  Cush.     135. 
133.     See  Bragg  v.  N.  E.  &c.,  5  Fost. 
289. 

pense,  he  holding  the  policy  as  security ;  in  an  action  upon  the  policy,  a  new 
trial  was  granted,  for  the  purpose  of  submitting  to  the  jury  the  question, 
whether  the  omission  of  the  mortgagee  to  make  known  such  agreement  to 
the  insurance  company  was,  or  was  not,  a  material  concealment  avoiding  the 
policy.  Kernochan  v.  New  York,  &c.,  5  Duer,  1.  See,  further,  Bowditch, 
&c.  V.  Winslow,  8  Gray,  38 ;  Allen  v.  Hudson,  &c.,  19  Barb.  442;  Wilbur 
V.  Bowditch,  &c.,  10  Cush.  446 ;  Jackson  v.  Farmers',  &c.,  5  Gray,  52. 


CH.  Xr.]  ESTATE   OF   THE   MORTGAGEE.  261 

appointee  would  have  a  right  to  claim,  could  not  happen. 
In  general,  the  assured  must  have  an  insurable  interest,  at 
the  time  of  the  damage  by  fire  as  well  as  at  the  time  of 
effecting  the  policy.  But  the  policy  and  by-laws  contain  an 
express  stipulation,  that  no  mortgaged  estate  shall  be  deemed 
to  be  alienated,  until  the  mortgage  shall  be  foreclosed."  So 
also,  that  a  mortgagee  may  recover,  notwithstanding  an  ali- 
enation. Hence  the  alienation,  in  this  case,  would  be  no  bar 
to  the  action.  But  the  Court  further  held,  that,  "  although 
the  insurance  is  not  upon  the  interest  of  the  mortgagee,  and 
the  undertaking  —  to  pay  the  mortgagee  —  collateral  and 
derivative,  yet  the  stipulation  is  so  made,  because  he  is  mort- 
gagee, and  for  the  better  security  of  the  mortgage  debt.  If, 
therefore,  the  mortgage  is  paid,  foreclosed,  or  otherwise 
discharged  and  extinguished,  such  separate  and  collateral 
promise  to  pay  the  mortgagee  would  be  determined." 

28ft.  A  late  case  in  New  York,^  (w)  the  report  of  which  has 

1  Court  of  Appeals,  New  York  City,  Grosvenor  v.  Atlantic,  &c. 


(w)  "  Harris,  J.  —  The  contract  of  insurance  is  a  contract  of  indemnity. 
To  sustain  an  action  upon  such  a  contract,  it  must  appear  that  the  party 
insured  has  sustained  a  loss.  This  involves  the  necessity  of  an  insurable 
interest  at  the  time  of  the  alleged  loss ;  without  such  interest  the  party  in- 
sured cannot  be  indemnified. 

"  In  this  case  the  contract  was  between  the  defendants  and  McCarty. 
The  agreement  was  to  insure  '  Eugene  W.  McCarty  against  loss  or  damage 
by  fire  to  the  amount  of  $7,000,  on  his  three  story  brick  dwelling-house.' 
But  after  the  contract  was  made,  and  before  the  alleged  loss,  McCarty  had 
sold  and  conveyed  the  property  insured.  At  the  time  of  the  fire  he  bad  no 
insurable  interest;  of  course,  he  has  no  claim  for  indemnity.  No  action, 
therefore,  could  be  maintained  upon  the  policy  of  McCarty. 

"  But,  at  the  time  the  insurance  was  effected,  the  plaintiff"  in  this  action, 
Grosvenor,  was  the  holder  of  a  mortgage  upon  the  premises  insured.  As 
such  mortgagee,  he,  too,  had  an  insurable  interest.  The  extent  of  that  m- 
terest  was  the  amount  of  his  debt.  To  that  extent  he  might  have  contracted 
with  the  defendants  to  indemnify  him  against  loss  by  fire.  The  payment  of 
his  debt  would  as  completely  terminate  the  contract  to  insure,  as  would  the 
alienation  of  the  property  when  the  contract  is  made  with  the  owners. 

"  The  important  inquiry  in  this  case  is,  to  which  of  these  classes  does  the 


262  THE   LAW   OF   MORTGAGES.  [CH.  XI. 

been  only  in  a  newspaper,  contains  an  abstract  and  revision  of 
several  previous  decisions  in  that  State.     The  point  directly 


contract  in  question  belong.  Tiie  action  is  brought  bj  the  plaintiff  as  mort- 
gagee ;  the  contract  was  made  with  McCarty,  the  mortgagor.  But  the  pol- 
icy provides  that,  in  case  of  loss,  such  loss  should  be  paj'able  to  the  plaintiff. 
What  is  the  legal  effect  of  this  provision  ?  Without  it,  the  plaintiff  could 
have  no  claim  against  the  defendants  for  indemnity.  Is  this  provision  to  be 
regarded  as  an  appointment  of  the  plaintiff  to  receive  any  money  which 
might  beconje  due  from  the  insurers,  by  reason  of  any  loss  sustained  by  the 
mortgagor  ;  or  has  it  the  effect  to  render  the  policy,  which  would  otherwise 
be  a  contract  to  indemnify  the  mortgagor  against  loss,  a  contract  to  indem- 
nify the  mortgagee  ?  A  determination  of  this  question  will  also  determine 
the  rights  of  the  parties  to  the  action. 

"  Were  it  not  for  one  or  two  decisions  in  this  State  bearing  upon  the 
question,  I  should  have  little  difficulty  in  pronouncing  in  favor  of  the  former 
of  these  propositions.  It  seems  to  me  to  be  very  clear  that  it  was  the  inten- 
tion of  all  the  parties  that  the  interest  of  the  mortgagor,  and  not  that  of  the 
mortgagee,  should  be  insured.  It  is  stated  in  the  policy  that  the  property 
insured  is  the  property  of  McCarty,  and  that  he  is  the  person  insured. 
McCarty  paid  the  premium  —  he  made  the  contract.  His  interest  as  owner, 
and  not  that  of  the  plaintiff  as  mortgagee,  was  the  subject  of  the  insurance. 
The  plaintiff  Avas  merely  the  appointee  of  the  party  insured  to  receive  the 
money  which  might  become  due  him  from  the  insurers  upon  the  contract. 
The  provision  in  the  policy  in  this  respect  had  no  more  effect  upon  the  con- 
tract itself  than  it  would  if  it  had  been  provided  that  the  loss  for  which  the 
insurers  should  become  liable  should  be  deposited  in  a  specified  bank  to  the 
credit  of  the  party  insured. 

"  Suppose  that  the  plaintiff,  although  described  in  the  policy  as  a  mort- 
gagee, had  in  fact  held  no  mortgage,  could  it  be  pretended  that  the  defend- 
ants might  have  avoided  the  policy  on  the  ground  that  the  plaintiff  had  no 
insurable  interest  ?  Or,  suppose  again,  that  after  the  contract  had  been 
made,  the  mortgage  bad  been  paid,  could  it  be  claimed  that  the  contract  to 
insure  had  also  ceased  ?  I  presume  none  will  deny  that,  in  either  case,  the 
contract  would  have  continued  in  force  for  the  benefit  of  the  owner  of  the 
property  insured.  If  so,  it  must  have  been  because  the  interest  of  the  mort- 
gagor, and  not  that  of  the  mortgagee,  svas  the  thing  insured.  I  agree  with 
the  Court  below,  that  '  there  is  nothing  in  the  language  of  the  policy  on 
which  the  Court  can  adjudge  that,  in  legal  effect,  it  is  a  contract  insuring 
the  interest  of  the  mortgagee,  as  such,  except  in  the  provision  which  declares 
that  the  loss,  if  any,  which  occurs  under  the  contract  insuring  the  mortga- 
gor's interest,  shall  be  payable  to  the  mortgagee.     That  provision  merely 


CH.  XI.]  ESTATE   OF   THE   MORTGAGEE.  263 

decided  is,  that  a  policy  of  insurance,  effected  by  a  mort- 
gagor in  his  own  name,  but  payable  in  case  of  loss  to  the 


designates  a  person  to  whom  such  loss  is  to  be  paid,  and  shows  that  ho  is  a 
person  who  may  have  an  interest  in  its  being  so  paid.' 

"  The  undertaking  to  pay  the  plaintifi"  was  au  undertaking  collateral  to 
and  dependent  upon  the  principal  undertaking  to  insure  the  mortgagor. 
The  effect  of  it  was,  that  the  defendants  agreed  that  whenever  any  money 
should  become  due  to  the  mortgagor  upon  the  contract  of  insurance,  thev 
would,  instead  of  paying  it  to  the  mortgagor  himself,  pay  it  to  the  plaintiff. 
The  mortgagor  must  sustain  a  loss  for  which  the  insurers  were  liable  before 
the  party  appointed  to  receive  the  money  would  have  a  right  to  claim  it.  It 
is  the  damage  sustained  by  the  party  insured,  and  not  by  the  party  appointed 
to  receive  payment,  that  is  recoverable  from  the  insurers.  See  Macomber 
V.  The  Cambridge  Mutual  Fire  Insurance  Co.,  8  Cush.  133.  The  insurance 
being  upon  the  interest  of  the  mortgagor,  and  he  having  parted  with  that 
interest  before  the  fire,  no  loss  was  sustained  by  him,  and,  of  course,  none 
was  recoverable  by  his  assignee  or  appointee.  The  right  of  such  a'  party 
being  wholly  derivative,  cannot  exceed  the  right  of  the  party  under  whom 
he  claims.  See  also  Carpenter  v.  The  Providence  Washington  Insurance 
Co.,  16  Peters,  495  ;  Foster  v.  The  Equitable  Fire  Ins.  Co.,  2  Gray,  216. 

"  I  agree  with  the  learned  judges  who  delivered  opinions  upon  the  de- 
cision of  this  case  in  the  court  below,  that  there  is  no  just  ground  for  dis- 
crimination between  this  case  and  that  of  an  assignment  of  the  policy  to  a 
mortgagee,  to  be  held  by  him  as  collateral  security  for  his  debt,  with  the 
consent  of  the  insurer.  In  either  case  the  insurance  is  upon  the  interest  of 
the  mortgagor.  The  terms  and  conditions  upon  which  indemnity  may  be 
claimed  are  agreed  upon,  and  then  the  original  parties  further  agree  that 
when,  by  the  terms  and  conditions  of  the  interest,  the  insurers  shall  become 
liable  by  reason  of  a  loss  sustained  by  the  party  insured,  the  money  shall  be 
paid,  not  to  the  party  who  has  sustained  the  loss,  but  to  his  appointee  or 
assignee,  for  his  benefit.  Such  an  appointment  or  assignment  ought  not  to 
be  construed  so  as  to  vary,  in  any  respect,  the  liabilities  of  the  insurers  upon 
their  original  contract.  It  is  certainly  true,  as  was  said  by  Mr.  Justice 
Woodrufi',  that  'when  applied  to  other  agreements  for  the  payment  of 
money,  an  assignment  does  no -more  than  direct  to  whom  it  shall  be  paid 
when  it  shall  become  due.' 

"  The  case  of  The  Traders'  Insurance  Company  v.  Robert,  9  Wend.  404, 
was,  in  my  judgment,  error»ously  decided,  and,  unless  by  subsequent  recog- 
nition or  acquiescence  it  lias  become  so  securely  imbedded  in  the  law  of 
this  State,  that  it  may  not  be  disturbed,  it  ought  not  to  be  followed.    It 


264  THE   LAW    OF   MORTGAGES.  [CH.  XI. 

mortgagee,  is  (in  the  absence  of  a  provision  in  the  policy 
to  the  contrary)  avoided,  by  a  subsequent  sale  of  the  equity 


was  a  condition  of  the  policy  in  that  case  that  it  should  cease,  if  the  assured 
should  effect  a  further  insurance  upon  the  property,  and  should  omit  to  give 
notice  of  such  further  insurance  -within  a  reasonable  time.  The  policy  in 
question  was  assigned  to  a  mortgagee  with  the  consent  of  the  insurers. 
After  this  assignment  the  party  insured  effected  a  further  insurance  with 
another  company,  and  neglected  to  give  the  requisite  notice.  It  was  held, 
that  the  action  being  brought  by  the  assignee  of  the  policy,  though  in  the 
name  of  his  assignor,  no  act  of  the  latter,  after  the  assignment,  could  be 
allowed  to  prejudice  the  rights  of  the  former.  The  argument  by  which  this 
result  was  reached,  seems  to  me  to  have  been  singularly  illogical  and  incon- 
clusive. Indeed,  it  depends  entirely  upon  the  misapplication  of  a  very 
familiar  principle.  '  Had  the  nominal  plaintiff  executed  a  release  to  the 
Insurance  Company,'  says  the  Court,  '  it  would  have  no  effect  upon  the 
rights  of  the  assignee ;  and  if  he  could  not  directly  discharge  the  right  of 
action  which  he  had  assigned,  surely  he  cannot  do  it  indirectly.  The  fact, 
therefore,  of  his  having  effected  a  subsequent  insurance  upon  the  same 
premises,  can  have  no  influence  upon  the  rights  of  the  real  plaintiff  in  this 
suit.'  It  is  quite  obvious,  I  think,  that  the  learned  Judge  who  delivered  the 
opinion,  entirely  failed  to  discriminate  between  acts  done  for  the  purpose  of 
discharging  the  liability  of  the  insurers  upon  their  contract,  and  acts  which, 
by  the  terms  of  the  contract,  were  necessary  in  order  to  continue  such  lia- 
bility. All  will  agree  in  the  soundness  of  the  premises  upon  which  the  argu- 
ment is  founded.  It  is  true  that  the  assignor  of  a  right  in  action  cannot 
indirectly,  any  more  than  he  can  directly,  do  anything  which  will  discharge 
the  liability  of  the  contracting  party  to  his  assignee.  But  it  is  equally  true, 
that  when  such  liability  is  by  the  terms  of  the  contract  made  to  depend  upon 
the  performance  of  an  act  by  the  assignor,  an  assignment  of  the  contract 
will  not  operate  to  dispense  with  the  performance  of  the  act  as  a  condition 
of  liability.  It  had  been  stipulated  between  the  contracting  parties,  that  if 
the  assured  should  effect  a  further  insurance,  and  should  omit  to  give  notice 
to  the  insurers  of  such  further  insurance,  the  whole  contract  should  be  at  an 
end.  This  was  the  condition  upon  which  the  insurers  were  to  continue 
liable.  It  was  no  less  a  condition  after  the  assignment  than  before.  The 
assignee  took  the  contract  with  knowledge  that  it  might  be  avoided  by  a 
failure  to  perform  this  condition.  The  inference  of  the  Court,  therefore, 
that,  because  the  assignor  of  a  right  in  action  Qfinuot  directly  or  indirectly 
release  such  right  of  action  to  the  prejudice  of  liis  assignee,  the  fact,  that, 
subsequent  to  the  assignment  of  the  policy,  the  assignee  effected  a  further 


CH.  XI.]  ESTATE   OF   THE   MORTGAGEE.  265 

of  redemption  by  the  mortgagor.      But,  in  New  Hampshire, 
where  application  by  a  mortgagor  for  an  insurance  stated, 


assurance,  without  giving  notice  as  required  by  the  policy,  would  have  nij 
influence  upon  the  rights  of  the  assignee,  is  not  justified. 

"  Again,  it  is  said  by  the  Court,  in  The  Traders'  Insurance  Company  v. 
Rober^t,  that  '  after  the  assignment  of  the  policy  to  Bolton,  the  mortgagee, 
Robert,  in  whose  name  it  was  originally  taken,  had  no  interest  in  it,  and 
that  the  rights  of  the  parties  were  the  same  as  if  the  policy  had  been  given 
to  Bolton.'  This,  too,  is  an  obvious  error.  Robert  was  as  much  interested 
in  the  policy  after  he  had  assigned  it  to  his  creditor  as  before.  The  monev 
for  which  the  insurers  might  become  liable  was  to  be  applied  to  his  use. 
The  only  effect  of  the  assignment  was  to  make  a  specific  appropriation  of 
the  money  beforehand  to  the  payment  of  a  specific  debt.  The  insurance 
was  for  the  benefit  of  the  owner  of  the  property  by  whom  it  was  obtained  ; 
but  it  was  convenient  for  him,  as  in  the  case  now  iu  hand,  to  appoint  the 
particular  creditor  who  should  receive  the  money  in  case  of  a  loss.  The 
real  interest  of  the  party  insured  remained  unchanged. 

"  From  the  judgment  of  the  Supreme  Court  in  The  Traders'  Insurance 
Company  v.  Robert,  there  was  no  appeal.  The  decision  was  suffered  to 
become  the  law  of  the  case.  There  stood  upon  the  records  of  the  court  an 
absolute,  unimpeachable,  and  irrecoverable  judgment  in  the  favor  of  Robert 
against  the  Insurance  Company.  The  legal  title  to  the  judgment,  was  in 
Robert.  A  contingent  equitable  interest  was  vested  in  Bolton,  the  assignee 
of  the  policy.  That  interest  was  extinguished  by  the  payment  of  the  debt, 
to  secure  which  it  had  been  assigned.  Thus  the  entire  equitable  as  well  as 
legal  right  to  the  judgment  became  invested  in  Robert,  the  plaintiff.  Under 
these  circumstances,  the  Supreme  Court,  as  though  aware  of  the  injustice 
which  its  decision  was  likely  to  work  out,  made  an  order,  on  motion  of  the 
defendants  on  the  judgment,  staying  all  further  proceedings  thereon,  thus, 
practically,  reversing  their  own  judgment  in  the  case.  This  order  was  re- 
versed by  the  Court  for  the  Correction  of  Errors,  and,  in  my  judgment, 
very  properly.  The  decision  was  put  upon  the  ground,  that,  as  a  valid 
judgment  had  been  obtained  upon  the  policy,  the  payment  by  Robert  of  the 
debt  to  Bolton,  for  the  security  of  which  the  policy  had  been  assigned,  '  had 
no  other  effect  than  to  bring  back  to  him  that  interest  in  the  policy  which 
he  had  assigned,  and,  of  course,  the  interest  also  in  the  judgment  which  had. 
been  obtained  upon  the  policy.'  See  Robert  v.  The  Traders'  Insurance 
Company,  17  Wend.  631. 

"  Were  the  question  left  here,  I  should  have  little  hesitation  in  saying  that 
the  judgment  of  this  Court  ought  not  to  be  controlled  by  the  decision  of  The 
Traders'  Insurance  Company  v.  Robert,     But  the  same  question  was  before 

VOL.   I.  23 


266  THE   LAW    OF  MORTGAGES.  [CH.  XI. 

that  the  property  was  mortgaged,  and  the  insurance  money 
to  be  paid  to  the  mortgagee ;  and  it  was  so  entered  on  the 


this  court  in  Tillou  v.  The  Kingston  Mutual  Insurance  Company,  Seld.  405, 
and  was  disposed  of  in  a  similar  way.  In  that  case  the  insurance  had  been 
effected  by  three  partners,  and  the  policy  had  been  assigned  to  a  mortgagee 
of  the  premises  to  secure  his  debt.  Afterwards,  one  of  the  partners  sold 
out  and  released  to  his  copartners  his  interest  in  the  property  insured.  A 
loss  havinnf  occurred,  an  action  was  brought  upon  the  policy  in  the  name  of 
all  three  of  the  partners.  The  action  was  defended  on  the  ground  that  the 
policy  had  been  rendered  void  by  the  alienation.  The  Supreme  Court  held, 
that  the  transfer  of  the  interest  of  one  partner  to  his  copartners  was  not 
such  an  alienation  of  the  property  as  would  avoid  the  policy.  Judgment 
was  accordingly  rendered  against  the  company  for  the  full  amount  of  the 
loss.  The  case  being  brought  into  this  court,  upon  appeal,  it  was  held  here, 
upon  the  authority  of  Murdoch  v.  The  Chenango  County  Mutual  Insurance 
Company,  2  Coms.  210,  that  the  plaintiffs  could  not  recover  for  their  own 
benefit,  on  the  ground  that  one  of  the  plaintiffs  had  no  interest  in  the 
action. 

"  The  question  now  before  the  Court  was  decided  entirely  upon  the  au- 
thority of  Robert  v.  The  Traders'  Insurance  Company,  and,  I  think  I  may 
be  allowed  to  add,  without  much  consideration.  The  learned  judge  who 
pronounced  the  opinion  of  the  court,  though  he  had  been  the  successful 
counsel  in  the  case  of  Robert  v.  The  Traders'  Insurance  Company,  evidently 
misapprehended  the  value  of  that  case  as  an  authority.  For  he  says,  after 
stating  the  point  decided  by  the  Supreme  Court,  that  '  the  case  afterwards 
came,  in  a  different  form,  before  the  Court  for  the  Correction  of  Errors,  and 
that  Court  recognized,  approved,  and  substantially  affirmed  the  judgment.' 
In  this  I  think  he  was  mistaken.  I  have  already  noticed  the  circumstances 
under  which  the  case  came  before  the  Court  of  Errors,  and  shown  that  the 
question  now  under  consideration  had  already  passed  beyond  the  reach  of 
that  court.  Had  it  not  been  so,  the  report  of  the  case  furnished  strong 
ground  for  the  belief  that  the  result  would  have  been  different. 

"  The  learned  judge,  further  to  sustain  the  authority  of  Robert  v.  The 
Traders'  Insurance  Company,  and  to  show  that  the  question  ought  to  be 
regarded  as  closed  against  further  consideration,  proceeded  to  say,  that  the 
case  had  already  been  twice  noticed  by  this  court,  and  each  time  with  ap- 
probation. In  support  of  this  statement,  he  refers  to  Conover  v.  The  Mutual 
Insurance  Company  of  Albany,  Comst.  293,  and  Murdoch  v.  The  Chenango 
County  Mutual  Insurance  Company,  above  cited.  In  the  former  of  these 
cases.  Judge  S.  A.  Johnson,  in  delivering  the  opinion  of  the  court,  says:  — 
'  We  are  not  called  upon  to  decide  whether  the  absolute  alienation  by  Con- 


CH.  XI.]  ESTATE   OF   THE   MORTGAGEE.  267 

policy ;  and  the  mortgagee  signed  the  premium  note  with 
the  mortgagor,  to  whom  the  policy  was  issued:  the  mortgage 
being  afterwards  foreclosed  without  any  action  on  the  part 
of  the  mortgagor,  held,  not  such  an  alienation  of  the  property 


over  after  the  assignment  of  the  policy,  is  a  good  defence.  The  point  was 
not  raised  on  the  trial.  But  if  it  were,  I  do  not  see  how  the  assignee  could 
be  affected  by  it.'  He  then  cites  The  Traders'  Insurance  Company  v.  Rob- 
ert, 9  Wend.  404.  Such  a  notice  of  an  authority,  it  seems  to  me,  can  add 
but  little  to  its  judicial  efficacy.  In  the  other  case,  the  approbation  is  still 
more  faint.  Indeed,  I  construe  it  into  positive  disapprobation.  Judge  Cady, 
who  alone  alluded  to  this  authority,  says :  —  'It  may  well  be  doubted  whether 
the  court  in  that  case  did  not  go  too  far  in  order  to  protect  the  assignee.' 

"  Thus  the  question  stands  upon  authority.  Tillou  v.  The  Kingston  Mu- 
tual Insurance  Company  contains  the  only  adjudication  upon  the  point  in 
this  court.  Of  that  case,  it  is  not  too  much  to  say,  that  it  was  decided  with- 
out much  examination,  the  court  relying  chiefly  upon  the  authority  of  Rob- 
ert V.  The  Traders'  Insurance  Company.  The  value  of  that  case,  as  a  pre- 
cedent, was,  as  I  have  attempted  to  show,  entirely  over-estimated.  Believ- 
ing, as  I  do,  that  it  was  decided  upon  mistaken  views  of  the  law  applicable 
to  the  question  involved,  and  that  the  decision  of  the  Supreme  Court  never 
had  the  sanction  of  the  Court  for  the  Correction  of  Errors,  and  that  the  case 
in  this  court  was  determined  upon  a  misapprehension  of  what  had  before 
been  adjudicated,  I  regard  the  question  as  yet  open  for  the  consideration  of 
this  court. 

"  Uijon  the  merits  of  the  question  I  have  already  sufficiently  expressed 
the  convictions  of  my  own  judgment.  The  defendants  contracted  with  Mc- 
Carty,  and  not  the  plaintiff.  They  agreed  upon  the  performance  of  certain 
conditions,  to  pay  for  him  to  the  plaintiff  certain  money.  Some  of  tlicse 
conditions  were  positive  in  their  chai'acter,  others  negative.  Certain  things 
were  to  be  done  by  the  assured,  and  other  things  were  not  to  be  done.  If 
ail  these  conditions  were  performed,  then,  if  a  loss  occurred,  the  defendants 
agreed  to  indemnify  him  against  that  loss  to  the  extent  specified  in  the  policy, 
and  he  appointed  the  plaintiff,  his  creditor,  to  receive  from  the  defendants 
the  amount  for  which  they  were  contingently  liable.  The  terms  of  the  con- 
tract have  never  been  waived,  relaxed,  or  modified.  The  defendants  have 
shown  an  express  violation  of  one  or  more  of  the  conditions  upon  which 
their  liability  was  to  depend.  And  yet  it  has  been  adjudged  — although  it 
is  evident  that  it  has  been  done  with  reluctance,  and  against  the  better  judg- 
ment of  the  court  making  the  decision  —  that  the  proof  of  these  violations 
constituted  no  defence  to  the  action.  The  judgment  should  be  reversed  and 
a  new  trial  granted,  with  costs  to  abide  the  event." 


268  THE   LAW    OF   MORTGAGES.  [CH.  XI. 

as  to  defeat  the  policy,  and  that  an  action  might  be  main- 
tained in  the  name  of  the  mortgagor.^ 

29.  Where  a  mortgagor  covenanted  with  the  mortgagee, 
that  he  would  keep  the  premises  insured  during  the  continu- 
ance of  the  lien  of  the  mortgage,  and  in  case  of  loss  that 
the  amount  received  upon  the  policy  should  be  applied  to 
the  rebuilding  of  the  property  insured  ;  it  was  held,  that  the 
mortgagee  had  an  equitable  lien  upon  the  fund  received  by 
the  mortgagor  under  the  policy,  to  satisfy  such  balance  of  the 
mortgage  debt,  as  could  not  be  collected  upon  a  foreclosure 
and  sale  of  the  mortgaged  premises.^ 

30.  K  the  mortgagor  either  expressly  or  impliedly  agree  to 
insure  for  the  benefit  of  the  mortgagee,  the  latter  has  an 
equitable  lien  upon  the  policy,  whether  prior  or  subsequent 
to  the  mortgage,  and  notwithstanding  a  further  stipulation, 
that,  in  default  of  such  insurance,  the  mortgagee  may  insure, 
at  the  mortgagor's  expense.  And  the  mortgagee's  lien  is 
valid  as  against  the  company,  and  an  assignee,  both  having 
notice.  Equity  will  not  in  such  case  enjoin  a  suit  brought 
by  the  assignee,  but  allow  it  to  proceed  to  judgment,  ijierely 
enjoining  payment  to  the  assignee,  and  authorizing  the  mort- 
gagee to  appear  as  a  party.  If  pending  the  suit  the  mort- 
gagee seU  the  estate  under  a  power  of  sale,  and  purchase  it 
in  the  name  of  a  third  person  ;  the  Court  will  enforce  the 
lien  upon  the  policy,  only  on  condition  of  the  mortgagee's 
allowing  a  redemption.^ 

31.  In  case  of  insurance  by  a  mutual  insurance  company, 
it  is  not  sufficient  to  enable  a  mortgagee  to  recover  upoji 
the  policy,  that  in  the  application  the  property  is  described 
as  incumbered,  and  the  loss  made  payable  to  him,  more 
especially  if  the  sum  insured  exceeds  the  amount  of  the 
mortgage.  In  such  case,  the  insurance  is  upon  the  property 
of  the  mortgagor.     He  gives  the  deposit  note  and  becomes  a 

1  Bragg  V.  New  England,  &c.,  5  J.  372.  See  Vernon  v.  Smith,  5  B.  & 
Fo8t.  28y.  A.  1. 

■'  Thomas  v.  Van  Kaphff,  6  Gill.  &        3  Nichols  v.  Baxter,  5  R.  I.  491. 


CH.  XI.]  ESTATE    OF   THE   MORTGAGEE.  269 

member  of  the  company,  and  the  contract  h  made  witli  liini  • 
while  the  mortgagee  is  not  insured,  and  does  not  become  a 
member.^ 

32.  In  assumpsit  on  a  policy  of  insurance,  it  appeared 
that  the  plaintiff,  as  mortgagee,  insured  his  interest  in  his 
own  name,  and  paid  the  premium.  The  defendants  (the 
corporation)  admitted  the  loss,  and  were  ready  to  pay  it, 
upon  the  plaintiff's  assigning  to  them  his  interest  in  the 
property.  Held,  as  there  was  no  privity  between  the  defend- 
ants and  the  mortgagor,  and  the  plaintiff  had  insured  for 
himself  and  in  his  own  name,  he  had  a  claim  to  the  full 
amount  of  the  policy,  without  assigning  or  relinquishing  his 
debt.2  (x) 

1  Kittredge  v.  Eockingham,  &c.  (N.  -  King  v.  State  Mutual,  &c.,  (Mass.) 
H.)  Law  Rep.  Dec.  1849,  p.  412.  Law  Rep.  June,  1851,  p.  88 ;  7  Cush. 

1,  8,  9,  10.     See  2  Pliill.  Ins.  419. 


(a;)  In  this  case,  the  Court  laid  down  the  further  doctrine,  that  the  mort- 
gagee might  subsequently  claim  the  full  amount  of  his  debt  from  the  mort- 
gaffor  1  the  contracts  between  the  mortcasree  and  raortsraaor,  and  between 
the  mortgagee  and  the  insurers,  being  alike  valid,  and  wholly  distinct  from, 
and  independent  of  each  other ;  the  debtor  paying  no  more  than  he  origin- 
ally received,  and  the  insurers  only  the  amount  of  a  voluntary  risk,  for  which 
they  received  the  premium  established  by  themselves ;  and  the  policy  not 
being  liable  to  the  objections  against  wager  policies.  The  Court  enter  into 
an  elaborate  examination  of  prior  decisions  upon  this  subject,  and  dissent 
from  the  doctrine  laid  down  in  Carpenter  v.  Providence,  &c.,  16  Pet.  495, 
(supra,  §  26,)  that,  if  the  mortgagee  recover  the  amount  of  his  debt  from  the 
insurers,  they  may  claim  an  assignment  of  the  debt  and  enforce  it  against 
the  mortgagor. 

It  has  been  recently  held  in  Maine,  that  insurance  money,  received 
by  the  mortgagee,  must  be  accounted  for  like  rents  and  profits.  And  if 
several  notes,  payable  at  different  times,  were  secured  by  the  mortgage,  and 
have  become  overdue,  such  money  is  to  be  appropiiated,  first  to  the  interest 
on  all  the  notes,  and  then  to  the  principal  of  the  notes,  in  the  order  in  which 
they  fall  due.  Larrabee  v.  Lumbert,  32  Maine,  97.  In  the  same  State,  by 
a  late  statute,  where  a  mortgagor  effects  insurance  upon  the  property,  with 
his  written  consent,  the  loss  may  be  paid  to  the  mortgagee ;  if  he  does  not 
thus  consent,  a  trustee  process  lies,  and  a  payment  will  be  available  pro 
23* 


270  THE   LAW    OF   MORTGAGES.  [CH.  XI, 

33.  A  lessee,  who  had  covenanted  to  insure  against  fire  in 
the  joint  names  of  himself  and  his  lessor,  with  a  proviso  that 
the  policy  moneys  should  be  expended  in  reinstating  the 
premises,  assigned  them  by  way  of  mortgage,  with  a  power 
of  sale,  under  which  the  mortgagee  sold.  The  mortgage  did 
not  refer  to  the  policy.  The  premises  were  partially  burned, 
and  reinstated  by  the  mortgagee.  On  a  claim  filed  by  the 
mortgagee  and  his  vendee,  the  mortgagor  was  decreed  to 
deliver  up  the  policy,  and  join  with  the  lessor  in  signing  the 
receipt  to  the  insurance  office,  to  enable  the  mortgagee  to 
receive  the  amount  of  the  loss.^ 

34.  A  lessee  in  possession  has  no  lien  as  against  his  mort- 
gagee, on  the  policy  moneys,  for  repairs  made  by  him.^ 

35.  A  mortgagor  assigned  his  policy  of  insurance  to  the 
mortgagee ;  and  a  suit  was  afterwards  brought  upon  it  in 
the  name  of  the  former,  but  for  the  use  of  the  latter,  and 
judgment  recovered.  The  judgment  remaining  unsatisfied, 
the  mortgagor  paid  the  mortgage  debt  by  coercion,  to  avoid 
foreclosure.  Held,  he  might  still  recover  the  amount  of  the 
judgment.^ 

^  Garden  v.  Ingam,  23  Eng.  Law  &  ^  Robert  v.  Traders',  &c.  17  Wend. 
Eq.  408.  631. 

•-'  Ibid. 

fatito.  Different  mortgages  have  claims  according  to  priority.  Any  insur- 
ance by  the  mortgagee  will  be  void,  if  he  claims  under  this  act,  unless  the 
insurer  of  the  mortgagor  consent.     St.  1844,  97,  98. 

The  owner  of  an  estate  insured  by  a  mutual  fire  insurance  company  mort- 
gaged the  estate,  and,  at  the  same  time,  with  the  assent  of  the  insurers, 
transferred  the  policy  to  the  mortgagee  by  an  assignment,  which  was  abso- 
lute in  terms  and  expressed  to  be  for  a  valuable  consideration,  but  intended 
only  as  a  security  for  the  mortgage  debt.  The  mortgagee  afterwards  as- 
signed the  mortgage  and  the  debt,  with  the  policy,  by  an  absolute  assign- 
ment, assented  to  by  the  insurers,  and  for  a  valuable  consideration.  The 
debt  having  been  subsequently  paid  to  the  assignee,  by  an  assignee  of  the 
mortgagor,  and  the  mortgage  thereupon  discharged  ;  and  the  assignee  of 
the  mortgagee,  after  the  expiration  of  the  policy,  having  received  the  re- 
turn preniium  thereon  ;  held,  although  he  might  receive  it  as  attorney  of  the 
morlgagor,  he  could  not  retain  it  against  the  mortgagor,  to  whom  he  was 
liable  therefor  in  an  action  of  assumpsit.     Felton  v.  Brooks,  4  Cush.  203. 


CH.  XI.]  ESTATE   OF   THE    MORTGAGEE.  OJl 

36.  Where  a  life  policy  is  assigned  to  the  mortgao-e(.',  in 
trust  to  receive  the  proceeds ;  he  cannot  have  a  decree  to 
sell  it,  but  may  have  one  for  foreclosure,  and  still  retain  the 
policy.^ 

37.  Although,  as  above  stated,  a  mortgage  in  most  re- 
spects is  treated  as  a  mere  security  accompanying  the  debt ; 
yet  the  assignment  of  a  mortgage  is  held  to  be  the  convey- 
ance of  an  estate,  and  not  the  mere  transfer  of  a  security. 
Hence  the  assignee  must  bring  an  action,  if  at  all,  in  his  own 
name.  An3  a  suit  to  foreclose  cannot  be  maintained  in  the 
name  of  the  mortgagee,  though  he  have  a  power  of  attorney 
from  the  assignee.^  In  delivering  the  opinion  of  the  Court, 
Parsons,  C.  J.,  distinguishes  this  case  from  that  in  which  a 
disseisee  makes  a  deed  of  the  land,  and  afterwards  brings  a 
suit  to  recover  it.  In  such  case,  the  conveyance  from  the 
plaintiff  is  no  bar  to  the  action,  because  the  disseisin  prevent- 
ed its  having  any  legal  operation.  But  the  possession  of  a 
mortgagor  is  no  disseisin  of  the  mortgagee,  and  his  aliena- 
tion is  not  the  assignment  of  a  chose  in  action,  but  a  trans- 
fer of  the  legal  estate,  subject  to  a  condition.  He  further  re- 
marks, that  a  contrary  rule  would  involve  great  inconvenience, 
because  the  assignee,  after  recovering  a  judgment  in  the 
name  of  the  mortgagee  or  his  representative,  if  deceased, 
might  still  find  it  difficult  to  perfect  the  legal  title  in  him- 
self. Nor  is  it  any  objection  to  such  suit,  that  judgment  has 
been  recovered  upon  the  bond  secured  by  the  mortgage,  and 
assigned  with  it,  in  the  name  of  the  assignor,  but  not  satis- 
fied, {y) 

1  Dyson  v.  Morris,  1  Hare,  413.  See  Given  v.  Doe,  7  Blackf.  210 ;  Ai- 

2  Gould  V.  Newman,  6  Mass.  239.     ken  v.  Skilburn,  27  Maine,  252. 


(?/)  It  has  been  held  in  Massachusetts,  that  disseisin  of  the  mortgagor, 
subsequent  to  the  mortgage,  is  also  a  disseisin  of  the  mortgagee  ;  and,  wliile 
it  continues,  the  latter  cannot  make  a  valid  transfer  of  the  mortgage.  Poig- 
nard  v.  Smith,  8  Pick.  272.  But  in  Vermont,  in  Converse  v.  Searls,  10  Verm. 
578,  (see  Converse  v.  Cook,  8  Verm.  164,)  it  was  held,  that  a  mortgage  may 


272  THE   LAW   OF  MORTGAGES.  [CH.   XI. 

38.  The  doctrines  above  stated,  as  to  the  nature  of  the 
mortgagee's  title,  have  been  settled  more  perhaps  upon  the 
authority  of  Lord  Mansfield's  decision  in  the  case  of  Martin 
V.  31owlin,  than  any  other  single  case.  This  decision  has 
consequently  been  often  commented  upon,  and  sometimes 
not  with  entire  approbation. 

39.  In  the  case  of  Parsons  v.  Welles,^  the  following  very 
lucid  and  forcible  remarks  were  made  by  Mr.  Justice  Wilde : 
—  "  It  cannot  be  denied,  that  these  principles  and  rules  of 
the  courts  of  equity  have  had  a  favorable  operation  in  the 
administration  of  justice,  and  have  afforded  relief  where,  by 
the  strict  principles  of  the  common  law,  the  mortgagor  was 
without  remedy.  They  are  conformable  to  the.  spirit  of  the 
mortgage  contract,  and  it  is  not  surprising  that  they  should 
have  gained  some  footing  in  the  courts  of  common  law.  It 
may  be  doubted,  however,  whether  in  some  particulars  they 
have  not  been  adopted  to  an  extent,  inconsistent  with  the 
established  rules  of  the  common  law."  The  learned  Judge 
then  quotes  the  above-cited  remarks  of  Lord  Mansfield,  in 
the  case  of  Martin  v.  Mowlin,  and  proceeds  as  follows  :  — 
"  No  authorities  are  cited  in  support  of  these  remarks,  and  it 
seems  to  me  extremely  difficult  to  reconcile  some  of  them 
with  well-established  principles  of  law,  or  with  the  true  in- 
tention of  the  statute  of  frauds.  Judge  Trowbridge  was  of 
opinion,  that  they  were  accompanied  with  some  restrictions, 

1  17  Mass.  423,  425.     See  Young  v.  Miller,  6  Gray,  154,  155. 


be  validly  assigned,  though  a  third  person  is  at  the  time  in  possession,  claim- 
ing adversely  to  the  mortgagor.  The  Court  say,  the  possession  of  neither 
party  could  prevent  the  other  from  transferring  his  interest.  While  the 
right  of  redemption  continues,  the  mortgagee's  interest  is  but  collateral 
security,  and  an  incident  to  the  debt,  which  is  the  main  subject  of  assign- 
ment. It  is  manifestly  foreign  to  the  purpose  of  the  statute  (to  prevent 
fraudulent  speculations,  &c.)  to  restrain  the  transfer  of  such  a  debt ;  and 
though  the  legal  title  may  not  pass  without  a  formal  conveyance,  it  is  but 
the  execution  of  a  trust,  which  a  court  of  equity  will  imply  in  favor  of  the 
assignee  of  the  debt. 


CH.  XI.]  ESTATE    OF   THE   MORTGAGEE.  273 

which  the  reporter  omitted  to  notice  ;  because  he  acknowl- 
edges in  his  preface  that  he  did  not  always  take  down  the 
restrictions  with  which  the  speaker  might  qualify  a  proposi- 
tion, to  guard  against  its  being  understood  universally,  or  in 
too  large  a  sense.  See  8  Mass.  Rep.  558.  This  appears  to 
me  probable,  for  it  is  impossible,  as  it  seems  to  me,  to  sup- 
pose that  Lord  Mansfield  meant  to  assert  that  '  the  estate  in 
the  land  is  the  same  thing  as  the  money  due  upon  it,''  with- 
out some  qualification  of  the  expression.  This  would  con- 
found all  our  notions,  and  break  down  every  disthiction 
between  real  and  personal  estate  ;  between  a  title  in  land 
and  choses  in  action  ;  between  mortgages  in  fee  and  mort- 
gages for  a  term  ;  and  between  mortgages  of  land  and  mort- 
gages of  goods.  Probably  Lord  Mansfield  intended  to  say 
nothing  more,  than  that  the  estate  of  the  mortgagee  is  worth 
no  more  than  the  debt,  and  is  dependent  upon  it ;  that  the 
discharge  of  the  debt,  at  the  time  stipulated  for  payment, 
would  defeat  the  mortgagee's  estate  ;  and  even  payment 
afterwards  would  have  the  same  effect,  by  the  aid  of  the 
court  of  chancery,  or  without  such  aid,  by  virtue  of  the 
statute  of  7  Geo.  II.,  ch.  20,  which  provides  that  the  mort- 
gagee shall  maintain  no  ejectment,  after  payment  or  tender 
by  the  mortgagor,  of  principal,  interest,  and  costs.  All  this 
would  be  true,  and  in  some  measure  justify  the  expression 
imputed  to  Lord  Mansfield ;  which,  without  some  such  re- 
striction or  qualification,  cannot,  I  think,  be  held  for  law. 
Nor  can  it  be  true,  as  Judge  Trowbridge  has  shown,  by 
very  cogent  arguments,  that  'the  assignment  of  the  debt  will 
draw  the  land  after  it,  as  a  consequence,'  to  every  purpose. 
It  can  only  be  so  by  the  aid  of  a  court  of  equity.  In  a  court 
of  equity,  the  debt  is  the  principal,  and  the  mortgage  is  the 
accessory.  And  it  is  there  held,  that  as  the  mortgagee  holds 
the  estate  in  trust  for  the  mortgagor,  so  when  the  debt  is 
assigned,  he  becomes  a  ti'ustee  for  the  benefit  of  the  person 
having  an  interest  in  the  debt.  Omne  principale  trahit  ad  se 
accessorium.  This  too  was  one  of  the  grounds  suggested  by 
Judge  Spencer  for  the  opinion  in  the  case  of  Green  v.  Hart, 


274  THE   LAAV    OF   MORTGAGES.  [CH.   XI. 

1  Johns.  580,  in  which  it  was  held  that  the  transfer  of  a  note, 
secured  by  mortgage,  being  in  writing,  the  mere  delivery  of 
the  mortgage  security  was  a  sutlicient  assignment.  It  is 
true  that  Judge  Spencer  remarks,  that  '  mortgages  are  not 
now  considered  as  conveyances  of  lands,  within  the  statute 
of  frauds.'  I  know  that  this  opinion  has  prevailed  in  courts 
of  equity ;  but  I  have  not  been  able  to  find  any  decided  case 
to  support  it  at  law ;  and  it  appears  to  me  against  the  letter 
and  intent  of  the  statute."  So  in  Maine,  Mellen,  C.  J.,  says :  ^ 
—  "  The  case  of  Martin  v.  Mowlin  has  so  long  been  the  sub- 
ject of  critical  animadversion  by  Judge  Trowbridge  and 
many  learned  Judges  since  his  time,  that  it  cannot  be  deemed 
an  authority."  And  in  Evans  v.  Merriken,^  Stephen,  J.,  con- 
trasts this  language  of  Lord  Mansfield  (as  to  the  identity  of 
the  debt  and  mortgage)  with  his  doctrine  in  the  subsequent 
case  of  Keech  v.  Hall,^  decided  at  a  later  period  of  his  judic- 
ial life,  as  to  the  right  of  possession  of  the  mortgagor  or  his 
tenant,  {z) 

40.  On  the  other  hand  it  has  been  said  :  —  "  These  dicta 
of   Lord   Mansfield "  (that  the  mortgage  accompanies  the 

1  Vose  V.  Handy,  2  Greenl.  333.  ^  g  Gill  &  J.  46,  47.  »  Dougl.  22. 


(2)  In  Shannon  v.  Bradstreet,  1  Sell.  &  L.  66,  Chancellor  Redesdale 
remarked  :  —  "  Lord  Mansfield  had  on  his  mind  prejudices  derived  from  his 
familiarity  with  the  Scotch  law,  where  law  and  equity  are  administered  in 
the  same  courts,  and  where  the  distinction  between  them  which  subsists  with 
us  is  not  known  ;  and  there  are  many  things  in  his  decisions  which  show 
that  his  mind  had  received  a  tinge  on  that  subject  not  quite  consistent  with 
the  constitution  of  England  and  Ir(;land  in  the  administration  of  justice.  It 
is  a  most  important  part  of  that  constitution,  that  the  jurisdictions  of  the 
courts  of  law  and  equity  should  be  kept  perfectly  distinct  ;  nothing  contrib- 
utes more  to  the  administration  of  justice  ;  and  although  they  act  in  a  great 
degree  by  the  same  rules,  yet  they  act  in  a  different  manner,  and  their 
modes  of  affording  relief  are  different ;  and  anybody  who  sees  what  passes 
in  a  court  of  justice  in  Scotland,  will  not  lament  that  this  distinction  pre- 
vails. But  Lord  Mansfield  seems  to  have  considered  that  it  manifested  lib- 
erality of  sentiment,  to  endeavor  to  give  the  courts  of  law  the  powers  which 
are  vested  in  courts  of  ecjuitv." 


CH.  XI.]  ESTATE    OF   THE   MORTGAGEE.  275 

note),  "are  criticized  by  Judge  Trowbridge,  and  conjectured 
by  him  to  have  been  put  down  by  the  reporter  by  mistake 
or  without  the  accompanying  qualifications  or  limitations. 
But  the  opinion  is  very  lengthy,  and,  if  not  furnished  by  him 
in  writing,  must  have  undergone  his  examination,  and  have 
had  his  deliberate  approbation  as  reported.  No  Judge  was 
ever  more  celebrated  and  admired  for  his  luminous  and  im- 
proved views  of  the  common  law,  and  the  adaptation  of  it 
to  the  advancing  state  of  society,  than  he  was.  Judge  Trow- 
bridge had  doubtless  drawn  his  conclusions  from  the  more 
ancient  sources  of  the  common  law ;  and  no  doubt  found  it 
difficult,  in  common  with  the  rest  of  us,  to  forego  his  venera- 
tion of  Lord  Coke.  The  doctrine  of  Lord  Mansfield,  how- 
ever, in  regard  to  mortgages,  would  seem  not  to  have  been 
entirely  repudiated  by  the  jurists  of  modern  times."  ^ 

41.  The  intimate  connection,  above  referred  to,  between  a 
mortgage  and  the  debt  secured  by  it,  has  an  important  bear- 
ing upon  the  rights  of  joint  mortgagees,  more  especially 
where  one  of  them  has  died,  (a) 

1  Per  Whitman,  C.  J.,  Wilkins  v.  French,  20  Maine,  116,  117. 


(a)  See  George  v.  Baker,  3  Allen,  326,  n.  In  case  of  joint  mortgagors, 
having  distinct  interests,  though  joining  in  one  deed,  equitable  rules  of  ap- 
portionment and  adjustment  will  be  aj^i^lied,  similar  to  those  adopted  in  case 
of  joint  mortgagees.  Thus,  if  two  persons  join  in  mortgaging  their  estates, 
to  secure  a  sum  advanced  to  them  in  different  proportions,  and  one  of  them 
afterwards  mortgages  to  the  same  mortgagee  property,  a  part  of  which  is 
included  in  the  former  deed,  the  mortgagee,  in  a  suit  for  foreclosure,  cannot 
charge  the  estate  of  the  other  mortgagor  with  more  than  the  first  advance. 
Higgins  V.  Frankis,  15  L.  J.,  ch.  329,  N.  S.  Three  tenants  in  common  gave 
a  power  of  attorney  to  make  improvements  and  raise  money  therefor  by 
mortgage,  which  was  done.  The  share  of  one  was  not  liable  to  be  mort- 
gaged, in  consequence  of  a  marriage  settlement.  Held,  the  others  were 
liable  only  for  their  respective  shares  of  the  debt.  Gumming  v.  AVilliamson, 
1  Sandf.  Ch.  17.  Where  two  unite  in  mortgaging  their  lands,  owned  in 
severalty,  each  is  presumptively  liable  for  half  the  debt,  and  his  lands  arc 
primarily  chargeable  to  that  extent ;  and  a  subsequent  unrecorded  agree- 
ment, by  which  one  agrees  to  pay  off  the  whole  debt,  does  not  affect  subse- 


276  THE   LAW   OF   MORTGAGES.  [CH.  XI. 

42.  In  Rigden  v.  Vallier,^  Lord  Hardwicke  remarked :  — 
"  This  Court  has  determined,  that  if  two  men  jointly  and 
equally  advance  a  sum  of  money  on  a  mortgage,  and  take 
that  security  to  them  and  their  heirs,  without  any  words 
equally  to  be  divided  between  them,  there  shall  be  no  survivor- 
ship ;  and  so  if  they  were  to  foreclose  the  mortgage,  the  es- 
tate should  be  divided  between  them,  because  their  intent  is 
presumed  to  be  so."  So  Judge  Story  says,  that  "  If  two 
persons  advance  a  sum  of  money  by  way  of  mortgage,  and 
take  a  mortgage  to  them  jointly,  and  one  of  them  dies,  the 
survivor  shall  not  have  the  whole  money  due  on  the  mortgage, 
but  the  representative  of  the  deceased  party  shall  have  his 
proportion,  as  a  trust ;  for  the  nature  of  the  transaction,  as  a 
loan  of  money,  repels  the  presumption  of  an  intention  to  hold 
the  mortgage  as  a  joint  tenancy."  -  But  it  is  held,  that  a 
surviving  mortgagee  may  bring  a  suit  to  foreclose.^ 

43.  In  Massachusetts,  if  a  mortgage  is  given  to  secure  a 
joint  debt,  it  shall  be  so  construed  as  to  create  a  joint  estate, 
notwithstanding  the  provisions  of  the  statute  making  all  con- 
veyances to  severed  persons  tenancies  in  common,  unless  a 
joint  tenancy  is  expressly  provided  for.  Such  mortgage  is 
construed  with  reference  to  the  nature  of  the  transaction,  and 
the  object  the  parties  had  in  view.'*  But  after  foreclosure 
the  mortgagees  become  tenants  in  common.  The  land  is  no 
longer  a  mere  incident  to  the  debt,  liable  to  be  released  by  a 
release  of  the  debt  made  by  one  mortgagee.  The  foreclosure 
operates  as  a  new  purchase,  as  much  as  if  the  mortgagees 
had  received  payment  of  the  debt,  and  laid  out  the  money  in 
buying  the  land.     So,  where  a  mortgage  is  made  to  secure 

1  2   Ves.    sen.   258.     See   Tyler  v.  Burnett  v.  Pratt,  22  Pick.  557 ;  Rev. 

Taylor,  8  Barb.  585.  Sts.  40G  ;  Goodwin  v.  Richardson,  11 

••^  Story's  Eq.  §  1206.  Mass.  469;  Randall  v.  Phillips,  3  Mas. 

8  Williams  v.  Hilton,  35  Maine,  547.  384  ;  Johnson  i-.  Brown,  11  Post.  405. 
*  Appleton  V.  Boyd,  7  Mass.  131 ; 


quent  bona  fide  purchasers  of  his  lands,  without  notice  of  the  agreement 
Hoyt  V.  Doughty,  4  Sandf.  462. 


CH.  XI.]  ESTATE    OF    THE   MORTGAGEE.  277 

several  debts  to  several  persons,  if  the  debts  arc  equal,  tlie 
mortgagees  will  have  an  equal  interest  in  the  mortgaged  es- 
tate, and  in  case  of  foreclosure  will  hold  it  in  equal  propor- 
tions. But  if  the  debts  are  unequal,  the  purparties  of  the 
tenants  will  be  in  exact  proportion  to  the  amounts  of  their 
respective  debts.^ 

44.  A  mortgage,  given  to  two  persons,  to  secure  their  sev- 
eral debts,  is  several  and  not  joint.  Each  mortgagee  has  a 
right  to  enforce  his  claim  under  the  mortgage,  in  a  form 
adapted  to  the  case.  Upon  the  death  of  one,  the  doctrine  of 
survivorship  does  not  apply,  and  the  surviving  mortgagee 
cannot  maintain  an  action  on  the  mortgage  to  enforce  the 
payment  of  the  debt  due  to  the  deceased.^ 

45.  It  seems,  if  a  mortgage  is  made  to  two,  to  secure  a 
debt  to  one  only,  they  take  the  legal  estate  as  tenants  in 
common ;  but  the  party  not  interested  in  the  debt  holds  his 
moiety  as  trustee  for  the  other.-^ 

46.  In  consequence  of  the  peculiar  nature  of  the  mortga- 
gee's interest,  as  being  a  mere  lien  or  pledge,  such  interest  is 
•not  liable  to  be  taken  and  sold  on  execution  by  his  creditors. 
This  point  seems  to  be  fully  established,  where  the  mortgagee 
has  not  taken  possession  ;  and  the  only  doubt  in  regard  to  it 
is,  whether  entry  for  breach  of  condition  vests  in  the  mort- 
gagee a  title,  which  can  be  reached  by  legal  process.'* 

47.  In  Connecticut,  in  a  case  where  the  law-day  had  ex- 
pired, but  no  decree  of  foreclosure  passed,  Hosmer,  C.  J., 
says :  — "  The  land  cannot  be  taken  for  the  debts  of  the  mort- 
gagee vntil  his  entry  upon  it,  and  in  my  opinion  until  fore- 
closure." ^ 

48.  In  New  Hampshire  it  is  held,  that,  before  entry  to  fore- 
close, the  mortgagee's  estate  is  not  subject  to  execution, 
though  judgment  has  been  rendered  upon  the  mortgage,  and 
a  writ  of  possession  issued.^ 

1  Donnels  v.  Edwards,  2  Pick.  617.  *  Huntington  v.  Smith,  4  Conn.  237. 

2  Burnett  v.  Pratt,  22  Pick.  556.  See  McGan  v.  Marshall,  7  Humpli.  121. 

3  Root  ^'.  Bancroft,  10  Met.  47.  **  Glass  v.  ElUson,  9  N.  H.  69. 
*  See  Phillips  v.  Hawkins,  1  Branch, 

(Flor.)  262. 

VOL.   I.  24 


278  THE   LAW    OF  MORTGAGES.  [CH.  XI. 

49.  In  the  case  of  Blanehard  v.  Colburn,^  in  Massachu- 
setts, Parker,  C.  J.,  assigned  various  reasons  for  this  doctrine. 
Land  mortgaged  is  not  the  real  estate  of  the  mortgagee, 
within  the  meaning  of  the  statute,  which  provides  for  the 
extending  of  executions  upon  such  estate.  "  The  difficulties 
of  levying  upon  land  mortgaged,  to  satisfy  a  debt  due  from 
the  mortgagee,  are  insuperable.  The  debt  may  require  only 
a  small  part  of  the  land  to  satisfy  it,  and  several  executions 
may  be  levied  by  several  persons;  and  this  would  embarrass 
the  mortgagor  or  his  heirs,  if  they  should  choose  to  redeem. 
Besides,  the  land  mortgaged  is  only  a  pledge  for  the  debt, 
which  may  be,  and  often  is,  assignable  in  its  nature ;  and  if 
it  be  assigned,  the  mortgagor  may  pay  it  to  the  assignee,  and 
thus  discharge  his  mortgage,  notwithstanding  the  creditors 
of  the  mortgagee  may  have  taken  the  land  in  execution. 
These  difficulties  have  caused  the  prevalent  opinion,  that 
lands  so  situated  are  not  subject  to  the  debts  of  the  mort- 
gagee ;  at  least  not  until  he  shall  have  entered  with  a  view 
to  foreclose."  In  this  case,  the  Court  seem  to  be  of  opinion, 
that,  if  it  had  appeared  by  direct  evidence,  or  facts  had  been 
proved  from  which  a  presumption  might  be  raised,  that  the 
rnortgagee  had  entered  before  the  levy,  such  levy  would  have 
been  good  ;  but  the  point  was  not  expressly  decided,  (b) 

1  16  Mass.  340 ;  Huntington  v.  Smith,  4  Conn.  237. 


(t)  An  early  commentary  upon  the  law  of  mortpjages  in  Massachusetts, 
often  referred  to  and  quoted,  takes  a  somewhat  different  view  of  this  par- 
ticular topic  :  — 

"  If,  then,  a  mortgagee  has  an  estate  or  interest  in  the  land,  why  may  it 
not  be  attached,  and  taken  from  him  by  his  creditors,  as  well  as  the  mort- 
•pager's  right  of  redemption  ?  A  term  in  I^ngland  may  be  extended  on  an 
eleyil  as  part  of  the  debtor's  land,  or  may  be  delivered  to  his  creditor  at  the 
appraised  value,  as  part  of  the  debtor's  personal  estate.  And  a  creditor  may 
take  half  of  the  debtor's  land  in  execution  on  elegit,  and  consequently  may 
take  lands  mortgagrd  in  fee.  A  different  doi-trine  involves  us  in  the  great- 
est absurdities,  which  appear  most  glaring  when  we  apply  it  to  mortgaged 
lands  in  possession  of  a  mortgagee  after  forfeiture.  The  province  law  of 
8  Wui.  111.  ch.  3,  provides,  that  all  lands  and  tenements  belonging  to  any 


CH.  XI.]  ESTATE  OF  THE  MORTGAGEE.  279 

50.  Upon  the  same  principle,  in  Eaton  v.  Whiting,^  the 
interest  of  a  mortgagee  was  held  not  liable  to  be  atlachcd  upon 
mesne  process,  (c)  The  mortgage  is  said  to  be  a  chose  in  ac- 
tion^ at  least  till  an  entry  to  foreclose,  and  to  be  in  the  nature 
of  a  pawn  or  pledge,  which  cannot  be  taken  upon  an  execution 
against  the  pledgee.  Nor  is  the  creditor  of  the  mortgagee 
without  remedy,  because  the  mortgagor  may  be  summoned 
as  trustee  of  the  mortgagee,  and  payment  upon  this  process 
would  discharge  the  mortgage  pro  tanto.     The  Court  finally 

1  3  rick.   488;    Marsh  v.  Austin,  1     Maine,  282;  Jenkins  v.  Quincy,  &c., 
Allen,   235 ;    Thornton    v.  Wood,   42    7  Gray,  373. 


person  in  his  own  proper  right  in  fee  may  be  taken  in  execution  —  where  he 
doth  not  tender  the  officer  personal  property.  Mortgages  of  land  in  fee  are 
either  real  or  personal  estate  of  the  mortgagee.  If  real,  then  they  are  lands 
and  tenements  belonging  to  the  mortgagee,  &c.  —  if  the  personal  estate  of 
the  mortgagee,  they  may  be  taken  as  his  personal  estate.  The  act  of  6  Geo. 
I.  empowers  a  creditor  to  take  his  debtor's  real  estate  in  execution.  This 
statute  extends  to  all  lands  and  tenements  in  which  the  debtor  has  any 
estate,  whether  conditional  or  absolute.  The  creditor  will  thereby  have  an 
estate,  which  will  last  as  long  as  the  debtor's  estate  would  have  continued. 
If  lands  or  tenements  mortgaged  are  taken  in  execution  for  the  debt  of  the 
mortgagee,  the  creditor  thereViy  becomes  a  purchaser  of  that  part  so  taken  ; 
and  the  mortgagee  may  redeem  in  a  year,  or  the  mortgagor  may  redeem  the 
whole  by  payment  of  the  principal  sum  lent,  and  the  interest,  &c.,  or  lodging 
it  in  Court,  in  which  case  the  mortgagee  and  his  creditor  must  surrender  up 
the  land  to  the  mortgagor,  and  release  their  rights  in  it,  or  the  Court  will 
give  judgment  for  the  mortgagor  to  have  possession  of  the  land,  and  issue 
execution  accordingly,  and  deliver  to  the  creditor  the  money  due  to  him, 
and  the  mortgagee  the  overplus,  if  any  there  be.  Where  the  whole  of  the 
land  is  not  taken  in  execution,  the  mortgagor,  as  well  as  his  creditor,  is  to 
be  made  a  party  to  the  mortgagor's  suit  in  equity.  Each  will  receive  what 
is  respectively  due  to  him."  Reading  of  Judge  Trowbridge,  8  Mass.  565- 
568. 

By  statute,  mortgages  held  by  Banks  are  liable  to  legal  process.  Mass. 
Rev.  Sts.,  ch.  36,  §§  52-54.  So,  by  Insurance  Companies.  Sts.  1854,  ch. 
453,  §  11. 

In  Florida,  if  a  mortgagee's  interest  is  sold  on  execution,  the  purchaser 
takes  it  subject  to  redemption.     Cotten  v.  Blocker,  6  Florida. 

(c)   So  that  of  the  execution  purchaser  of  an  equity.     42  Maine,  282. 


280  THE   LAW   OF   MORTGAGES.  [CH.  XI 

consider  it  as  "  settled  law,  that  the  interest  of  a  mortgagee 
before  entry  is  not  attachable." 

51.  The  peculiar  nature  of  the  mortgagee's  interest,  as 
above  explained,  appears  from  the  disposition  which  the  law 
makes  of  it  after  his  death.  Upon  this  subject  it  is  well 
settled,  that,  on  the  death  of  the  mortgagee,  his  estate  goes 
to  his  executors,  not  to  his  heirs ;  is  primarily  liable  for  debts; 
and  passes  by  a  devise,  though  not  executed  with  the  formal- 
ities necessary  to  a  will  of  real  estate,  [d)     So  a  mortgage  is 


(d)  In  Massachusetts,  before  entry  of  the  mortgagee,  his  heirs  take  no  title 
to  the  land.  Steel  v.  Steel,  4  Alien,  421.  In  Maine,  Massachusetts,  Rhode 
Island,  and  Michigan,  it  is  provided  by  statutes,  that  the  executor,  &c.  of  a 
mortgagee  may  recover  possession  of  the  land  and  hold  it  as  assets,  and  shall 
be  seised  to  tlie  use  of  the  heirs,  widow,  or  devisees,  (in  Maine,)  and  (in  Mas- 
sachusetts and  Maine,)  of  creditors  also,  or  of  the  same  persons  who  might 
claim  the  money,  if  paid  to  redeem  the  land.  In  Massachusetts  and  Rhode 
Island,  it  may  be  sold,  by  license  of  Court,  for  payment  of  debts.  (Judore 
Story  says,  by  a  statute  of  Rhode  Island,  debts  <lue  by  mortgage  are  per- 
sonal property,  and  distributed  as  such.  And  where  the  mortgagee  has 
deceased  without  taking  possession,  the  debt  is  deemed  personal  assets,  and 
the  mortgage  under  the  same  control  of  the  executor,  &c.,  as  if  it  were  a 
pledge  of  personal  estate  (ace.  Me.  Rev.  Sts.  ch.  89)  ;  and  he  may  recover 
possession  by  ejectment,  and  may  discharge  the  mortgage  on  payment,  by 
release,  quitclaim,  or  any  legal  conveyance.  Dexter  v.  Arnold,  (1  Sumn.  1 14.) 
In  Maine  and  Maryland,  an  executor  may  discharge  a  mortgage.  Mass. 
Rev.  Sts.  430  ;  1  Smith,  166,  167;  Me.  Rev.  Sts.  ch.  89;  R.  I.  L.  233,  234; 
Mich.  L.  57;  Md.  L.  2528.  See  Root  v.  Bancroft,  10  Met.  48;  McCall  v. 
Lenox,  9  S.  &  R.  304  ;  Fox  v.  Lipe,  24  ^\'^end.  164;  Pierce  v.  Brown,  24 
Verm.  165.  In  Wisconsin,  (Rev.  Sts.  3G8.)  the  mortgage  is  assets,  and  the 
executor,  &c.  may  foreclose.  In  case  of  redemption  or  sale  under  a  power, 
the  executor  releases.  If  he  purchases  the  estate,  he  is  seised  for  the  parties 
in  interest.  He  may  sell  the  mortgage  for  payment  of  debts  and  legacies. 
If  not  sold,  it  is  distributed  as  personal  estate.  In  New  York  it  has  been 
held,  that,  after  condition  broken,  the  legal  title  passes  to  the  heir,  though 
perhaps  in  trust  for  the  executor.  The  former  must  bring  an  action.  Van 
Duyne  v.  Thayre,  14  Wend.  236.  A  statute  was  passed  in  England  in  1850, 
designed  to  reconcile  the  conflicting  interests  of  the  personal  representative 
an<l  the  heir  of  a  deceased  mortgagee  ;  but  has  been  held  inapplicable,  in 
a  late  case,  unless  "  the  money  due  in  respect  of  the  mortgage  has  been 
paid  to  a    person   entitled   to  receive   the  same."      Catherine  Mevrick,  4 


CH.    XI.]  ESTATE    OP    THE    MORTGAGEE.  281 

properly  discharged  by  the  administrator.^  And  one  joint 
executor  may  assign  a  mortgage.^  So,  proceedings  to  fore- 
close a  mortgage  being  legal  proceedings,  the  legal  right  of 
an  intestate  passes  to  his  administrator,  who  may  assert  it  as 
the  intestate  would  have  done.^  "  The  mortgage  is  a  mere 
chattel  interest,  of  which  the  administrator  has  the  control. 
He  is  responsible  for  the  debt  for  which  it  is  a  pledge."  * 

52.  "  By  the  common  law,  if  the  conditions  of  defeasance  of 
a  mortgage  of  inheritance  be  so  penned,  that  no  mention  is 
made  either  of  heirs  or  executors  to  whom  the  money  should 
be  paid  ;  in  that  case  the  money  ought  to  be  paid  to  the  ex- 
ecutors, in  regard  that  the  money  came  first  out  of  the  per- 
sonal estate,  and  therefore  usually  returns  thither  again;  but 
if  the  defeasance  appoints  the  money  to  be  paid  either  to 
heirs  or  executors  disjunctively,  there,  by  the  common  law,  if 
the  mortgagor  pay  the  money  precisely  at  the  day,  he  may 
elect  to  pay  it  either  to  the  heirs  or  executors,  as  he  pleaseth. 
But  where  the  precise  day  is  past,  and  the  mortgage  forfeited, 
all  election  is  gone  in  law :  for  in  law  there  is  no  redemp- 
tion. Then,  when  the  case  is  reduced  to  an  equity  of  re- 
demption, that  redemption  is  not  to  be  upon  payment  to  the 
heirs  or  executors  of  the  mortgagee,  at  the  election  of  the 
mortgagor;  for  it  were  against  equity  to  revive  that  election ; 

1  Ely  V.  Schofield,  35  Barb.  330.  land,   13   Mass,   311.     See   Babbitt  v. 

2  George  v.  Baker,  3  Allen,  326  n.  Bowen,  32  Verm.  437  ;  Nagle  v.  Macy, 

3  Riley  v.  McCord,  24  Mis.  265.  9  Cal.  426. 
*  Per  I'arker,  C.  J.,  Scott  v.  McFar- 


Eng.  Rep.  144.  See  Simpson  v.  Ammons,  1  Binn.  177.  In  Richardson  v. 
Hildreth,  3  Cush.  227,  Bigelow,  J.,  distinguishes  between  the  case  of  a  de- 
ceased mortgagee,  and  that  of  a  deceased  owner  of  real  estate,  which  is  re- 
quired for  payment  of  debts.  There  the  seisin  is  vested  in  the  heirs,  and 
the  authority  to  sell  may  be  executed  without  actual  possession. 

Where  the  executor /orec/oses  a  mortgage,  the  legal  title  vests  in  the  heir, 
even  though  the  Court  decree  possession  of  the  estate  and  the  title-papers  to 
the  executor.  Upon  this  ground,  it  is  held,  that  the  heir  should  be  joined 
as  party.     Osborne  v.  Tunis,  1  Dutch.  633. 

In  case  of  foreclosure,  the  estate  vests  in  the  parties  entitled  to  the  money, 
unless  needed  for  administration  purposes.  Fifield  v.  Sperry,  20  N.  H.  338. 
24* 


282  THE   LAW    OF   MORTGAGES.  [CH.   XI. 

for  then  the  mortgagor  might  defer  the  payment  as  long  as 
he  pleaseth,  and  at  last  for  a  composition  by  payment  of  the 
money  to  that  hand  which  will  use  him  best ;  much  less  can 
the  Court  elect  or  direct  the  payment  where  they  please,  for 
a  power  so  arbitrary  might  be  attended  with  many  inconve- 
niences throughout.  Therefore,  to  have  a  certain  rule  in  these 
cases,  and  a  better  cannot  be  chose  than  to  come  as  near 
unto  the  rule  and  reason  of  the  common  law  as  may  be. 
Now  the  law  always  gives  the  money  to  the  executor  where 
no  person  is  named,  and  where  the  election  to  pay  to  either 
heir  or  executor  is  gone  and  forfeited  in  law,  it  is  all  one  in 
equity  as  if  either  heir  or  executor  were  named,  and  then 
equity  ought  to  follow  the  law  and  give  it  to  the  executor ; 
for  in  natural  justice  and  equity,  the  principal  right  of  the 
mortgagee  is  to  the  money,  and  his  right  of  the  land  is  only 
as  a  security  for  the  money  ;  wherefore  when  the  security 
descends  to  the  heir  of  the  mortgagee,  attended  with  an 
equity  of  redemption,  as  soon  as  the  mortgagor  pays  the 
money,  the  lands  belong  to  him,  and  only  the  money  to 
the  mortgagee,  which  is  merely  personal,  and  so  accrues  to 
the  executors  or  administrators  of  the  mortgagee."  ^  And  in 
another  early  case  it  is  said,  a  condition  to  pay  executors 
and  administrators  shows  that  the  mortgage  is  regarded  as 
a  chattel  interest,  and  the  heir  cannot  claim  under  it.  If 
the  word  heirs  be  added,  the  same  construction  would  prob- 
ably be  adopted,  though  the  true  meaning  might  be  more 
doubtful.  2(e) 

1  Tcr  Lord    Keeper  Fincli,  Thorn-        2  Pawlett  v.  At.-Gen.,  Hardies,  467. 
borough  V.  Baker,  Cases  in  Chancery, 
1,  284,  285. 


(e)  A  mortgagee  in  fee  died  intestate,  as  to  the  mortgaged  premises,  but 
appointed  an  executor.  His  heir  at  law  could  not  be  found,  or  was  unknown. 
The  mortgage-money  was  still  due,  and  was  not  intended  to  be  paid  off;  but 
the  executor,  wishing  to  make  a  transfer  of  the  mortgage,  petitioned,  under 
the  19th  section  of  the  1.3  &  14  Vict.  c.  60,  (the  Trustee  Act,  1850,)  for  an 
order  vesting  the  mortgaged  premises  in  him.     Held,  the  Court  had  jurisdic- 


CH.  XI.]  ESTATE   OF   THE   MORTGAGEE.  288 

53.  In  Massachusetts,  it  was  formerly  held,  that  upon  the 
death  of  a  mortgagee  Ihe  estate  descends  to  his  heir,  who 
holds  in  trust  for  the  executor  ;  the  land  being  a  deposit  for 
the  money,  and  the  heir  a  surety  to  keep  the  pledge.^  J3ut 
subsequently  the  Court  held,^  that,  according  to  the  general 
principles  relating  to  mortgages,  as  well  as  by  express  stat- 
ute, the  heirs  of  a  mortgagee  cannot  bring  a  suit  for  fore- 
closure. The  effect  of  such  a  suit  might  be,  that  the  heirs, 
who  give  no  bonds,  would  get  possession  of  assets  required 
for  payment  of  debts ;  and  the  fact  that  no  administrator  had 
ever  been  appointed,  though  twenty  years  had  elapsed  from 
the  mortgagee's  death,  would  make  no  diflerence.  The 
Court  proceed  to  comment  upon  the  doctrine  of  Judge  Trow- 
bridge, that  the  estate  of  a  mortgagee  descends  to  his  heirs, 
as  being  advanced  at  a  time  when  no  statute  existed  on  the 
subject,  and  chiefly  for  the  purpose  of  refuting  Lord  Mans- 
field's supposed  views  as  to  mortgaged  estates.  They  fur- 
ther remark,  that,  if  a  mortgagee  enter  before  condition  broken, 
and  die,  he  may  be  considered  as  having  died  seised  of  a 
defeasible  estate  ;  but  still  the  executor,  &c.,  would  have  the 
right  of  possession.  And  in  a  still  later  case,^  w^here  a  mort- 
gagee deceased  had  entered  for  condition  broken,  agreeing 
that  the  mortgagor  might  remain  in  possession,  paying  inter- 
est as  rent  till  foreclosure  or  redemption  ;  and  the  demand- 
ants sued  as  heirs  of  the  mortgagee :  it  was  held  that  the 
action  could  riot  be  maintained.  Wilde,  J.,  says:*  —  "  The 
tenant  might  have  pleaded  the  mortgage,  and  restricted  the 
demandants  to  a  conditional  judgment,  —  although  the  mort- 
gagee entered,  he   had  not  recovered  possession  within  the 

1  Eearling  of  Judge  Trowbridge,  8  ^  Dewey  v.  Van  Deusen,  4  Tick.  19. 
Mass.  554.  *  Ibid.  2\. 

-  Smith  V.  Dyer,  10  Mass.  18. 


tion  upon  such  a  petition  to  make  the  order,  and  that  the  legislature  did  not 
mean  to  confine  its  authority  to  the  c 
den's  Estate,  9  Eng.  Law  &  Eq.  22.3. 


mean  to  confine  its  authority  to  the  case  of  a  simple  "  reconveyance."     Bo- 


284  THE    LAW    OF    MORTGAGES.  [CH.  XI. 

true  meaning  of  the  statute  ;  he  had  the  legal  but  not  the 
actual  possession  ;  and  therefore  the  action  should  have  been 
brought  by  the  administrator." 

54.  A  statute  having  provided,  that  the  mortgagee  should 
release  on  payment,  after  recovering  possession  ;  a  possession 
obtained  by  his  administrator,  by  entering  without  suit,  was 
held  within  the  equity  of  the  statute.^ 

55.  Where  a  mortgagee  died,  after  recovering  a  conditional 
judgment;  it  was  held  that  his  administrator  might  bring  a 
writ  of  entry  against  a  devisee  of  the  mortgagor  to  recover 
possession,  having  ultimately  entered  under  the  former  judg- 
ment.''^ 

56.  In  Maine,  under  a  statute  which  provided  that  an 
administrator  might  assign  a  mortgage,  it  was  held  that  this 
might  be  done  by  a  quitclaim  deed,  if  the  intent  so  ap- 
peared.^ 

57.  In  New  Hampshire,  if  an  executor  takes  a  mortgage 
to  secure  a  debt  due  the  estate,  and  forecloses,  it  enures  to 
the  benefit  of  the  estate,  the  legatees  or  heirs,  under  the 
direction  of  the  Probate  Court.  The  executor  gains  no  title, 
except  in  his  official  capacity.* 

58.  The  question,  what  words  in  a  will  are  necessary  to 
pass  a  mortgage  held  by  the  testator,  has  been  often  dis- 
cussed in  English  and  American  cases,  and  has  been  the 
subject  of  somewhat  conflicting  decisions.  In  Ballard  v. 
Carter,-^  Parker,  C.  J.,  remarks  upon  the  clausd  of  the  will  in 
question  in  that  ca.se,  as  follows  :  —  "  Whether  this  convey- 
ance is  to  be  considered  a  mere  pledge  or  security  for  the 
money,  or  as  giving  a  title  to  land  so  as  to  constitute  real 
estate  in  the  hands  of  the  testator,  it  must  be  considered  as 
devised  under  the  words,  '  all  my  estate,  whether  real  or  per- 
sonal, which  may  remain,'  &c.  This,  however,  according  to 
some  of  the   authorities,  might  be  questioned.     In  3  Ves. 


1  Scott  V.  McFarland,  3  Mass.  311.  *  Thurston  v.  Kennett,  2  Fost.  151. 

2  Uicliardson  v.  llildreth,  8  Cush.  ^  5  l>■^^.\^_   115,      gee  Field's,  &c.  7 
224.                        •  Eiig.  Law  &  Eq.  260. 

»  Crooker  v.  Temell,  31  Maine,  306. 


CH.   XI.]  ESTATE   OP   THE   MORTGAGEE.  286 

jun.  348,  it  was  determined  that  the  legal  estate  of  a  mort- 
gagee in  mortgaged  premises  did  not  pass  by  a  general  resid- 
uary devise  of  '  all  his  estate  and  effects  whatsoevi-r  and 
wheresoever.'  So  in  1  Atk.  605,  it  was  decided,  that  by  a 
devise  of  all  lands,  tenements,  and  hereditaments,  a  mort- 
gage in  fee  should  not  pass.  Bat  in  2  P.  Wms.  198,  it  is 
held,  that  a  devise  by  a  trustee  of  all  the  rest  of  his  real 
estate  will  pass  the  trust  estate,  and  in  the  note  of  Butler  to 
Co.  Lit.  203,  (note  93,)  it  seems  to  be  considered  by  that 
learned  editor,  that  a  mortgage  will  pass  under  such  a  de- 
vise, and  the  eases  of  Marlow  v.  Smith,  2  P.  Wms.  198,  and 
Attorney-General  v.  Phillips,  are  cited.  It  would  be  a  fruit- 
less task  to  go  over  all  the  cases  of  the  English  books  on 
this  subject,  with  a  view  to  reconcile  them.  It  is  enough  for 
us,  that  under  the  terms  of  the  residuary  clause  in  this  will, 
it  being  expressly  a  devise  of  both  real  and  personal  estate, 
we  are  satisfied  that  this  estate  would  have  passed,  had  it 
remained  unchanged  until  the  death  of  the  testator."  So 
Chancellor  Kent  remarks,^  that  a  mortgagee  being,  till  fore- 
closure, a  trustee  for  the  mortgagor,  the  mortgage  will  pass 
under  general  words  in  the  will  of  the  former  relating  to  real 
estate,  unless  a  contrary  intent  is  to  be  gathered  from  the 
language  of  the  will,  or  the  testator's  purposes  and  ob- 
jects. (/) 

1  Jackson  v.  De  Lancy,  13  Johns.  537. 


(/)  Upon  the  same  subject,  the  same  learned  jndire  further  remarks:  — 
"  On  reading  these  latter  cases,  we  are  ahnost  involuntarily  led  to  pause, 
and  wonder  at  the  extraordinary  and  very  unaccountable  perplexity,  doubt 
and  alternation  of  opinion,  which  they  discover  on  this  point.  The  learned 
men  referred  to  in  these  cases  do  not  appear  to  me,  with  all  proper  humility 
be  it  spoken,  to  have  examined  this  question  with  the  diligence  or  the  talent 
worthy  of  the  eminent  reputation  they  boar.  If  indeed  they  did,  the  reports 
have  done  them  great  injustice.  Lord  Eldon  had  studied  the  question  with 
profound  attention,  and  he  showed  it  to  be  perfectly  clear  and  settled  ;  but 
in  the  other  modern  chancery  cases  on  this  point,  we  find  nothing  but  what 
tends  to  expose  the  inefficiency  of  legal  learning,  and  the  weakness  of  hu- 
man reason."     Jackson  v.  DeLancy,  13  Johns.  559. 


286  THE    LAW    OF   MORTGAGES.  [CH.    XI. 

59.  The  interest  of  a  mortgagee,  deceased,  is  so  strictly 
construed  as  personal  estate,  that,  though  the  heir  be  in  pos- 
session, after  breach  of  condition,  and  no  want  of  assets,  he 
shall  be  decreed  to  convey  to  the  administrator.^     But  if  the 

1  Ellis  V.  Guavas,  2  Cha.  Cas.  50. 


Devise  of  all  the  rest  and  residue  of  the  testator's  freehold,  leasehold,  and 
copyhold  estates  in  possession  or  reversion,  with  all  his  goods,  chattels,  &c., 
morUjoges  and  debts,  subject  to  the  payment  of  his  debts,  &c.,  and  appointing 
the  legatee  to  be  his  executor.  Held,  the  legal  estate  in  the  mortgaged  prem- 
ises descended  to  the  heir,  because  the  devise  was  made  subject  to  payment 
of  debts,  and  to  this  purpose  the  money  secured,  and  not  the  land,  was  alone 
applicable.  Silvester  v.  Jarnian,  10  Price,  78.  Devise  of  all  the  rest,  residue, 
and  remainder  of  and  in  all  and  singular  the  property,  estate,  and  effects 
which  the  testator  should  be  possessed  of  or  entitled  to,  or  over  ^which  he 
should  have  a  disposing  power,  at  his  decease,  of  whatsoever  nature  or  kind 
the  same  might  be.  Held,  the  legal  estate  in  mortgaged  premises  did  not  pass 
by  this  devise,  but  descended  to  the  heir.  Harriett,  &c.,  McLel.  &  Y.  292. 
The  legal  estate  in  property,  vested  in  a  testator  by  way  of  mortgage,  does 
not  pass  under  the  terms,  "  securities  for  money,"  or  "  money  invested  on 
any  security."  Ex  parte  Priel,  (Vice-Chancellor's  Court,)  Law  Rep.  June, 
1850,  p.  92.  But  a  becjuest  of  personal  estate  passes  mortgages.  Asay  v. 
Hoover,  5  Barr,  21.  A  testator  sold  the  land  devised,  taking  back  a  bond 
and  mortgage  for  part  of  the  price.  Held,  the  devise  was  revoked,  and  the 
bond  and  mortgage  did  not  pass  by  the  will.  Beck  v.  McGillis,  9  Barb.  35. 
The  rule,  of  treating  a  mortgage  as  personal  property,  in  a  devise,  has  been 
held  not  applicable  to  lands  originally  held  under  old  mortgages.  These 
pjiss  by  a  general  devise,  though  no  release  of  the  equity  of  redemption 
appears.  Atty.  &c.  v.  Bowyer,  5  Ves.  299.  Upon  this  subject  Lord  Lough- 
borough says,  (Ibid.  303)  :  —  "  What  is  personal  estate  is  to  be  decided  at 
the  time  of  the  death.  If  it  is  no  longer  money,  but  land,  by  a  release  of  the 
equity  of  redemption,  it  will  go  to  the  devisee  of  the  freehold  or  leasehold 
estate  ;  and  I  would  never  suffer  the  personal  representative  to  take  that  as 
personal  estate.  It  is  no  longer  money.  At  the  date  of  the  will,  1  take  it, 
upon  the  report,  it  was  mere  money,  a  mortgage  title;  but  if  he  lived  the 
period,  when  all  the  equity  of  redemption  was  gone,  then  it  exists  in  no 
shape  as  part  of  his  property,  but  as  land,  held  either  by  a  leasehold  title  or 
a  freehold  title ;  and  I  would  never  take  it  up  again  as  money  in  favor  of 
the  executor.  There  is  no  equity  between  the  heir  and  executor,  or  the 
devisee  and  executor." 


CH.  XI.]  ESTATE    OF   THE   MORTGAGEE.  287 

delft  be  paid,  and  a  bill  brought  for  reconveyance,  the  heir 
of  the  mortgagee  must  be  made  party.^ 

60.  A  statute  of  Massachusetts,  1788,  ch.  51,  provided 
that  mortgaged  premises  should  be  assets  in  the  hands  of 
executors  and  administrators,  as  personal  estate.  Ali^o,  that 
the  executor  or  administrator  of  a  deceased  mortf^agee, 
having  recovered  possession  of  the  estate  by  a  suit  at 
law,  should  be  seised  to  the  sole  use  and  behoof  of  the 
widow  and  heirs,  &c. ;  with  a  proviso,  that  the  property 
might  be  distributed  by  the  Judges  of  Probate  as  per- 
sonal estate,  unless  necessary  for  payment  of  debts,  &c.,  in 
which  case  it  might  be  sold  under  a  license  in  the  usual 
mode.  The  Court  held,  that  this  statute  had  the  effect  of 
vesting  all  authority  over  mortgaged  estates,  not  taken 
possession  of  by  the  mortgagee  in  his  life,  in  his  executor, 
&c.,  as  trustee  of  creditors  and  others  interested  in  the  per- 
sonal estate.^ 

61.  In  the  case  of  Boylston  v.  Carver,^  this  provision  was 
held  not  to  vest  in  the  widow,  &c.,  an  executed  use,  under 
the  statute  of  uses,  but  to  give  the  administrator  a  trust,  to 
continue  till  certain  purposes  are  accomplished  thereby.  If 
necessary  for  payment  of  debts,  &c.,  he  is  to  sell  under  a 
license  ;  if  not,  the  Probate  Court  will  pass  a  decree  of  dis- 
tribution among  those  entitled  to  the  personal  property,  and 
it  may  vest  in  them  by  virtue  of  such  decree,  declaring  the 
use,  of  the  statute  of  uses,  and  the  statute  authorizing  such 
distribution  ;  or  perhaps  the  administrator,  in  execution  of 
his  trust,  may  be  required  to  execute  a  deed  without  war- 
ranty, conformably  to  such  decree. 

62.  In  the  case  of  Webber  v.  Webber,^  the  Court  in  Maine 
were  of  opinion,  that  the  words  "  seised  to  the  use  of  the 
widow  and  heirs,"  should  be  so  construed,  as  to  vest  the  es- 
tate in  the  heirs,  after  the  period  of  redemption  had  expired, 

1  Silvester  v.  Jarnian,  10  Price,  78.  ^  4  Mass.  609. 

■^  Johnson  i;.  Bartlett,  17  Pick.  484.  *  6  Greenl.  IZ7. 

See  McCall  v.  Lenox,  9  S.  &  K.  304; 
Gay  V.  Minot,  3  Gush.  352. 


288  THE    LAW    OF    MORTGAGES.  [CH.  XL 

and  all  the  purposes  been  accomplished  for  which  the  admin- 
istrator became  a  trustee. 

63.  In  the  case  of  Johnson  v.  Bartlett,^  where  an  adminis- 
trator had  thus  recovered  possession  of  the  land  mortgaged, 
the  mortgagor  conveyed  to  him  all  his  right  and  title,  speci- 
fying it  as  a  right  to  redeem  the  mortgage,  but  not  expressly 
as  administrator.  It  was  held,  that  the  conveyance  operated 
as  a  release  of  the  equity  of  redemption,  and  vested  an  abso- 
lute title  in  the  administrator,  but  subject  to  the  same  trusts 
as  his  former  estate  ;  and  that  a  sale  by  him,  without  license, 
either  passed  no  title,  or  one  subject  to  the  like  trusts  in  the 
hands  of  the  purchaser,  who  should  be  presumed  to  have 
notice  thoM-eof,  inasmuch  as  they  were  created  by  law,  and 
depended  upon  acts  and  conveyances  which  were  matter  of 
record.  The  Court  remarked,  that  the  administrator  had  the 
same  right  to  foreclose  the  mortgage  in  this  way  as  in  any 
other,  and  this  was  the  real  intent  and  effect  of  the  transac- 
tion. A  contrary  construction  would  charge  the  parties  with 
fraud,  which  is  never  to  be  presumed. 

64.  In  New  Hampshire,  an  administrator  may  foreclose 
by  entry  and  possession  for  one  year,  as  the  deceased  might 
have  done.  Upon  foreclosure,  the  legal  title  vests  in  the 
heirs,  subject  to  his  rights  as  trustee.  It  is  there  held  the 
duty  of  the  administrator  to  foreclose  the  mortgage,  if  the 
debt  is  not  paid ;  but  he  may  elect  between  an  action  and  a 
peaceable  entry  for  this  purpose.''^ 

65.  It  has  been  held  in  Massachusetts,  that  the  estate  of  a 
deceased  mortgagee  in  the  mortgage,  though  not  strictly  real 
property,  so  far  partakes  of  that  character,  as  to  require  a 
license  from  the  Probate  Court,  to  justify  a  sale  of  it  by  the 
administrator. 

66.  In  the  case  of  Blair,^  a  petition  was  presented  to  the 
Judge  of  Probate  by  administrators  for  leave  to  sell  a  note 
and  mortgage,  not  due,  and  on  which  mortgage  no  posses- 
sion had  been  taken.     The  petition  set  forth  that  the  estate 

1  17  Pick.  477.  2  Gibson  v.  Bailey,  9  N.  H.  168.  ^  13  Met.  126. 


CH.    Xr.]  ESTATE    OF    THE    MORTGAGEE.  289 

was  insolvent,  and  would  be  prejudiced  by  waiting  for  pay- 
ment of  the  note  at  maturity.  The  Probate  Court  dis- 
missed the  petition,  on  the  ground  that  such  sale  might  be 
made  without  license,  and  the  petitioners  appealed.  Held 
the  decree  should  be  reversed,  and  the  case  remanded  to  the 
Court  below.  Shaw,  C.  J.,  says  :  ^  —  "We  are  of  opinion, 
that  the  Court  of  Probate  has  authority  to  grant  a  license,  in 
such  cases,  and  that  the  petition  presents  a  fit  case  for  the 
exercise  of  it.  It  may  be  probable  that  the  legislature,  by 
the  terms  '  real  estate  so  held  by  an  executor,'  &c.,  had  more 
immediate  reference  to  mortgaged  estate,  on  which  the  exec- 
utor, &c.,  had  entered  in  pais  or  by  a  judgment.  But  the 
terms  are  broad  enough  to  cover  all  estate  mortgaged  to  the 
testator.  The  right  to  enter,  and  the  right  to  maintain  a 
real  action,  given  by  §11,  imply  that  the  executor  or  admin- 
istrator has  a  qualified  seisin,  and  holds  the  estate.  And 
the  reason  of  the  provision  for  a  license  to  sell  applies  as 
strongly  to  estate  of  which  the  administrator  has  not  ob- 
tained possession,  as  to  that  on  which  he  has  entered.  It 
appearing  to  us,  that  a  license  is  necessary,  by  law,  to  enable 
the  administrator  to  sell  the  said  mortgaged  estate  and  the 
note  secured  thereby,  the  case  is  to  be  remanded."  («■) 

67.  In  Gibson  v.  Bailey,"^  decided  in  New  Hampshire, 
Parker,  C.  J.,  remarks  upon  this  subject :  —  "  Whether  the 
administrator  has,  in  such  case,  any  right  to  sell  except 
under  a  license  from  the  Judge  of  Probate  ;  and  whether  the 
property,  when  the  mortgage  is  foreclosed,  is  to  be  distribu- 
ted as  personal  estate ;  or  whether,  in  case  the  administrator 

1  13  Met.  127.  2  9  N.  H.  173. 


(g)  By  St.  1849,  ch.  47,  any  real  estate  held  by  an  executor,  &c.,  in 
morlgage,  may  be  sold  before  foreclosure,  in  the  same  manner  as  personal 
estate  is  sold.  And  by  St.  1851,  ch.  288,  all  transfers  of  mortgaged  real 
estate  by  executors,  &c.,  subsequent  to  the  llev.  Sts.,  and  prior  to  the  act  of 
1849,  are  declared  etlectual  and  confirmed,  though  made  without  license  of 
Court. 

VOL.  I.  25 


290  THE    LAW    OF   MORTGAGES.  [CH.    XI. 

does  not  sell,  it  is  to  be  treated  as  if  the  absolute  fee  had 
been  conveyed  to  the  intestate  at  the  date  of  the  mortgage, 
so  that  a  widow  would  be  entitled  to  dower  only,  are  ques- 
tions upon  which  it  is  not  necessary  for  us  now  to  express 
an  opinion." 


CH.  Xir.]     ESTATE    OF    THE    MORTGAGEE. TACKING,  ETC.  291 


CHAPTER   XII. 

ESTATE  OF  THE  MORTGAGEE. WHAT  CLAIMS  AND  DEMANDS 

SHALL  BE  SECURED  BY  THE  MORTGAGE. TACKING, FUTURE 

ADVANCES. 

1.  Construction  of  the  condition  of  a  j      22.  Tocklnq. 
mortgage.     Ambiguity  of  description.  |      33.  Wlietlier  adopted  in  the  United 
Variance  between  the  mortgage  and  !  States, 
personal  security,  &c.  I      41.  Future  or  subsequent  advances. 

1.  In  considering  the  nature  of  the  mortgagee's  title,  and 
the  connection  between  the  deed  and  the  debt  thereby  se- 
cured, it  is  proper  to  inquire,  for  what  claims  and  demands 
a  mortgage  shall  stand  as  security.  Ordinarily,  the  debt 
designed  to  be  secured  is  so  distinctly  specified  in  the  deed, 
as  to  admit  of  no  doubt,  construction,  or  enlargement. 
Sometimes,  however,  questions  have  arisen  upon  this  point, 
either  from  an  ambiguity  of  description,  or  an  attempt  to 
extend  the  operation  of  the  mortgage  to  claims  which  are 
only  by  implication  to  be  brought  within  its  terms,  {a)  The 
general  rule  is  laid  down,  that  "  to  some  extent,  parol  evi- 
dence may  be  properly  resorted  to,  for  the  purpose  of  show- 
ing whether  the  demand  exhibited  was  really  the  subject  of 
the  mortgage."^  [b)     And  it  will  be  seen,  that  the  law  itself 

1  Per  Dewey,  J.     Baxter  v.  M'Intire,  13  Gray,  171. 


(a)  See  Goldsmith  v.  Brown,  35  Barb.  484  ;  Mobile,  &c.  v.  Talman,  15 
Ala.  472;  Griffin  v.  Cranston,  1  Bosw.  281  ;  Byers  v.  Fowler,  14  Ark.  86  ; 
Hamilton,  &c.  v.  Reynolds,  5  Duer,  671  ;  lloss  v.  Utter,  15  111.  402. 

(ft)  If  a  mortgage  is  made  expressly  to  secure  written  liabilities,  it  cannot 
be  applied  to  any  debt  not  in  writing.  And,  in  the  absence  of  fraud,  the 
mortgagor  is  not  estopped  to  deny  the  existence  of  any  written  security. 
Walker  v.  Paine,  31  Barb.  213. 

Where  parol  evidence  is  admitted  for  the  plaintifT",  the  eilect  of  which  is 
to  reduce  the  defendant's  liability  from  that  specified  in  tlie  mortgage,  it  is 


292  THE    LAW   OF   MORTGAGES.  [CH.  XII. 

has  in  some  cases  sanctioned,  by  virtue  of  an  established 
nile  of  equity  jurisprudence,  a  still  wider  and  more  important 
enlargement  of  the  literal  terms  of  a  mortgage. 

2.  Cases  have  arisen,  of  discrepancy  between  the  mortgage 
and  the  personal  security. 

3.  Upon  the  general  ground,  that  the  personal  security 
is  the  principal,  and  the  mortgage  merely  incident  or 
collateral,  it  has  been  held,  that,  where  the  mortgage  is 
conditioned  to  pay  a  particular  sum,  but  also  to  secure  a 
bond,  the  condition  of  which  covers  all  the  liabilities  of  the 
mortgagor  to  the  mortgagee,  the  mortgage  shall  be  con- 
strued in  conformity  with  the  bond.^  So  A.  gave  to  B.  a 
mortgage,  dated  September  21,  1853,  which  recited,  that  it 
was  given  to  secure  to  B.  the  payments  of  a  bond  of  the 
same  date,  in  the  penal  "  sum  of  $3,000,  conditioned  for  the 
payment  of  $1,500  in  three  annual  payments,  with  interest, 
from  the  1st  day  of  May,  1853;  and  further,  that,"  in  case 
of  default  in  the  payment  of  the  principal  sums  and  interest 
aforesaid  for  thirty  days  from  the  time  they  became  due,  &c., 
the  mortgagee  might  sue  out  a  sci.fa.  Held,  that  resort  might 
be  had  to  the  condition  of  the  bond  to  ascertain  the  time 
when  the  annual  payments  were  due ;  and,  it  being  provided 
therein  that  the  $1,500,  with  the  interest  from  May  1,  was 
to  be  paid  in  three  annual  payments  from  that  date,  that  the 
first  was  due  on  the  1st  day  of  May,  1854.^  So,  where  a 
mortgage  is  given  to  secure  a  bond,  with  penalty ;  in  a  suit 
for  foreclosure,  judgment  can  be  given  only  for  the  amount 
of  the  penalty,  though  less  than  the  amount  due.^  But 
where  a  mortgage  contained  a  condition,  that  the  mortgagor 
should  pay  the  debt  according  to  the  condition  of  a  bond 
recited  in  the  deed,  by  which  it  was  made  payable  on  a  day 
already  passed;  held,  the  mortgage  was  still  valid  in  equity.* 

1  New  Hampshire,   &c.  v.  Willard,        ^  Harper  v.  Barsh,  10  Rich,  Eq.  149. 
10  N.  H.  210.  «  Huglies  v.  Edwards,  9  Wheat.  489. 

*  Kennedy  v.  Ross,  25  Penn.  256. 


not  competent  for  him  to  object  to  such  evidence.     Baxter  v.  M'lntire,  13 
Gray,  1C8. 


CH.  XII.]  ESTATE  OF  THE  MORTGAGEE. — TACKING,  ETC.     293 

4.  A  similar  ambiguity  may  arise  in  regard  to  the  name  of 
a  party.  Thus  a  note  was  made  to  E.  H.,  payable  on  de- 
mand  with  interest.  Some  months  afterwards,  the  promisor 
made  a  mortgage  to  E.  H.  3d,  conditioned  for  payment  of  a 
note  of  the  same  date,  for  the  same  sum,  on  demanti,  with 
interest.  Held,  in  an  action  on  the  mortgage,  parol  evidence 
was  admissible,  that  E.  H.  and  E.  H.  3d,  were  partners,  doing 
business  in  the  name  of  E.  H.,  and  that  the  note  was  made 
for  a  debt  due  the  firm,  and  was  the  note  referred  to  and 
secured  by  the  mortgage.  (In  the  same  case,  the  mortgage 
described  the  note  as  dated  one  thousand  seventeen  hundred 
and  ninety-eight.  The  Court  remarked  :  "  This  is  so  pal- 
pably a  clerical  mistake,  that  no  reliance  is  made  upon  it  by 
the  counsel.")  ^ 

5.  In  general,  a  mortgage  made  to  guaranty  a  loan  is 
invalid,  unless  the  loan  is  correctly  recited  in  the  mortgage.^ 
But  foreclosure  may  be  had  for  a  demand,  the  amount  of 
which  remains  to  be  liquidated  after  the  judgment.^ 

6.  Several  mortgages,  appearing  on  their  face  to  be  for 
distinct  debts,  in  equity  may  be  -shown  to  be  merely  addi- 
tional evidence  of  and  security  for  one  debt.*  So  a  bond  was 
made  for  $2,000,  with  a  mortgage  to  secure,  and  referring  to 
the  bond,  but  leaving  a  blank  for  the  amount.  The  mortgage 
was  recorded,  but  soon  afterwards  the  mortgagor  executed  a 
sealed  instrument,  stating  that  the  sum  was  omitted  by  mis- 
take, which  writing  was  attached  to  the  registry.  A  second 
mortgage  was  made,  to  one  who  had  seen  such  registry. 
Held,  the  first  mortgage  should  prevail.^  So,  where  a  mort- 
gage describes  the  debt  as  being  for  five  hundred  dollars,  but 
two  notes  are  produced  for  five  hundred  dollars  each,  which 
the  mortgage  was  given  to  secure,  it  shall  be  security  for 
both.^  So,  where  a  mortgage  is  made  to  secure  certain  notes 
described  therein,  but  which  by  m.istake  are  left  with  the 
mortgagor,  and  others  taken  by  the  mortgagee;  the  mort- 

1  Hall  V.  Tufts,  8  Pick.  455-460;  '  Anderson  vl)aviGsGMunf.  484. 
ace.  Williams  v.  Hilton,  35  Maine,  547.         "  Lambert  v.  Hall,  o  Halst.  Lh.  41U. 

2  Thomas  v.  Olney,  16  111.  53.  651. 

8  Richards  v.  Bibb,^i  Geo.  198.  «  Crafts  v.  Crafts,  13  Gray,  300. 

25* 


294  THE    LAW    OF    MORTGAGES.  [CH.  XII. 

o-acrce  may  have  relief  in  equity  against  a  subsequent 
mortgagee.  So,  if  the  notes  are  wrongly  described.^  So 
where  a  deed  does  not  describe  the  rate  of  interest  or  the 
times  of  its  payment,  but  shows  clearly  that  the  note  bears 
interest;  this  is  sufficient  to  put  a  subsequent  incumbrancer 
upon  inquiry,  and  he  can  take  no  advantage  of  the  omis- 
sion.- 

7.  But  where  a  mortgage  was  conditioned  for  payment  of  a 
certain  sum  on  a  certain  day,  the  year  being  left  blank,  accord- 
ing to  the  tenor  of  a  note  for  the  same  sum ;  and  the  mortgagee 
brouafht  an  action  for  breach  of  the  covenants  in  the  mort- 
gage  ;  and  it  appeared  by  parol  proof,  that  the  note  was 
never  made,  and  only  part  of  the  money  loaned,  for  which  a 
receipt  was  given  ;  held,  the  action  did  not  lie.  Parker,  C. 
J.,  says: — "  The  deed  must  be  considered  as  never  having 
been  executed  and  delivered  for  the  purpose  of  having  effect 
according  to  its  tenor.  The  blank  shows  that  something 
further  was  to  be  done ;  no  time  of  payment  is  limited ;  so 
that  it  would  be  necessary  to  resort  to  parol  evidence.  The 
same  species  of  evidence  might  be  given,  to  show  that  that 
sum  had  never  been  lent.  The  bargain  was  incomplete,  and 
never  took  effect."^  So  a  mortgage  was  given  to  secure  a 
sum  of  money,  to  be  ascertained  by  the  award  of  two  per- 
sons, chosen  by  the  parties,  and,  in  case  of  disagreement,  an 
umpire  to  be  chosen  by  the  arbitrators.  The  referees,  taking 
the  data  in  the  mortgage,  were  to  make  out  their  award,  and 
return  it  to  the  parties  in  writing  within  thirty  days  of  their 
appointment.  The  award  failed  through  misconduct  of  the 
arbitrators.  Held,  the  mortgage  was  thereby  defeated,  and 
the  mortgagee  could  have  no  relief  in  equity,  upon  a  bill  for 
the  sale  of  the  property,  and  specific  execution  of  the  con- 
tract.* 

8.  In  regard  to  the  date  and  time  of  payment  of  a  mort- 
gage, it  has  been  held,  that  a  mortgage  dated  1837,  and  pay- 

'   I'orler  i-.  Smitli,  13  Verm.  4'J2.  ='  Parker  v.  Parker,  17  Mass.  370- 

-  Kiehards  v.  Holmes,  18  How.  143.     375. 

*  Emery  v.  Owings,  7  Gill,  488. 


CH.  XII.J     ESTATE    OF    THE    MORTGAGEE.  —  TACKING,  ETC.  295 

able  in  1830,  is  payable  immediately,  and  parol  evidence  is 
inadmissible  to  the  contrary.^ 

9.  In  case  of  a  mortgage,  conditioned  to  pay  "  ^1,256..'j0 
with  interest,  after  the  first  day  of  April  next,  in  fourteen 
equal  annual  instalments,  on  the  first  day  of  April  of  each 
and  every  year  after  the  first  day  of  next  April,"  the  obligor 
is  bound  to  pay  the  sum  in  fourteen  equal  annual  instal- 
ments, on  the  first  day  of  April  in  each  year,  with  interest  on 
each  instalment,  payable  at  the  time  it  became  due." 

10.  A  recital  in  a  mortgage,  that  the  mortgagor  "is  in- 
debted" to  the  mortgagee  in  a  certain  sum,  for  which  "he 
has  given  his  checks,"  &c.,  does  not  imply  that  the  mortgage 
was  made  for  an  antecedent  debt.^ 

11.  Where  a  mortgage  recited,  that  on  settlement  of  ac- 
counts the  mortgagor  was  indebted  to  the  mortgagee  in  a 
certain  sum  ;  held,  such  settlement  did  not  include  a  note 
made  two  days  before.* 

12.  A  member  of  an  unincorporated  banking  company 
executed  a  mortgage  to  the  officers  of  the  company,  reciting 
that  it  was  to  secure  his  bond  for  his  subscription  for  stock, 
and  to  bind  him,  in  conjunction  with  each  stockholder,  "  to 
all  and  singular,  the  holders  of  the  notes,  bills,  checks,  and 
other  liabilities  of  the  said  company  now  existing,  or  which 
may  hereafter  exist,  at  any  time  within  fifteen  years ; "  pro- 
vided that  if  he  paid  and  satisfied  the  bond,  and  the  officers 
of  the  company  and  their  successors,  for  the  stock  subscribed 
at  the  periods  when  due,  and  should  pay  off  and  discharge  all 
the  notes,  &c.  of  the  company,  the  mortgage  should  be  void. 
Held,  the  mortgage  was  not  only  a  security  for  the  subscrip- 
tion, but  also  to  the  creditors  of  the  company  for  their  claims ; 
and  that  a  creditor  of  the  company,  to  whom  the  mortgage 
was  assigned,  might  bring  a  bill  to  foreclose,  when  his  own 

1  Fuller  V.  Acker,  1  Hill,  473.    Ace.  »  Bank,   &c.  v.  Wlijte,  3  Md.  Ch. 

Martin   v.  Rapelye,  3   Edw.  Ch.  229.  608. 

See  Mobile,  &c. ;;.  Talman,  15  Ala.  472.  *  Tharp  v.  Feltz,  6  B    Mon.  6. 

-  French  v.  Kennedy,  7  Barb.  452. 


296  THE   LAW   OF   MORTGAGES.  [CH.    XII. 

debt  became  due,  though   no   instalment  was  due   on  the 
mortgagor's  bond  for  his  subscription.^ 

13.  Similar  questions  arise  in  reference  to  mortgages  of 

indemyiity. 

14.  A  mortgage  to  secure  a  certain  sum,  which  may  be 
furnished  in  materials  towards  the  erection  of  a  house  for  the 
mortgagor,  does  not  cover  a  liability  assumed  by  the  mort- 
gagee as  surety  or  guarantor  for  the  mortgagor.^ 

15.  It  is  held  that  a  mortgage  of  indemnity  to  a  surety 
need  only  describe  the  note  so  as  to  identify  it;  though  the 
sum,  date,  and  name  of  one  of  the  signers  be  omitted.^  And 
where  a  mortgage  specified  the  liability  of  the  surety  "  at 
about  $2,000,"  when  in  fact  it  amounted  to  only  half  that 
sum  ;  but  did  not  profess  to  state  with  accuracy  the  amount 
of  the  liability,  and  the  actual  liability  was  at  the  time  un- 
ascertained :  held,  this  over-statement  was  not  conclusive 
evidence  of  fraud.'* 

16.  A  mortgage  recited,  that  the  mortgagees  were  indors- 
ers  on  two  bills,  when  in  fact  they  were  indorsers  on  one 
only,  and  paid  the  other  for  the  honor  of  the  drawer  before 
the  mortgage  was  made.  Held,  the  mortgage  was  still 
valid.^ 

17.  If  the  condition  is  to  indemnify  a  surety,  and  a  certain 
sum  is  mentioned,  be  the  debts  more  or  less  for  which  he  is 
surety,  the  mortgage  will  cover  all  the  debts  for  which  he 
was  surety.^ 

18.  One  becoming  surety  for  another,  for  a  certain  sum, 
took  from  him  a  note  for  that  amount,  secured  by  mortgage, 
and  afterw^ards  paid  the'  debt.  Held,  the  mortgage  was  in- 
valid against  a  subsequent  mortgagee.'^ 

19.  A  mortgage  may  be  questioned  for  the  uncertainty  of 
the  claim  secured.  But  a  mere  clerical  inaccuracy  will  not 
affect  its  validity,  if  the  debt  is  identified  beyond  mistake.^ 

'  Wall  V.  Boisgerard,  II  Sm.  &  Mar.  **  Orr  i'.  Hancock,  1  Root,  265. 

674.  7  North  i;.  Belden,  13  Conn.  376. 

2  Doyle  V.  White,  2G  Maine,  341.  «  Tousley  v.  Tousley,  5  Ohio,  N.  S. 

»  Boody  V.  Davis,  20  N.  H.  140.  78.     Ace.  8  Pick.  455  ;  Gill  v.  Finney, 

*  Bumpas  v.  Dotson,  7  Humph.  310.  12  Ohio  St.  38;  Hurd  v.  Robinson,  11 

«  Fetter  v.  Cirode,  4  B.  Monr.  482.  Ibid.  232. 


en.  XII.]    ESTATE    OF    THE    MORTGAGEE. TACKING,  ETC.  297 

20.  A  party  owing  $10,000,  as  the  balance  of  an  account, 
gave  a  mortgage  for  $3,000.  Held,  the  mortgage  was  not 
void  for  uncertainty  against  creditors.^  But  a  mortgage 
conditioned  to  pay  a  debt  due  by  note,  dated  May  10,1834, 
on  demand,  with  interest,  was  held  invalid  against  a  subse- 
quent mortgage.2 

21.  A  mortgage  was  conditioned  to  pay  "on  demand,  with 
interest,  the  sum  of  $1,500,  which  I  am  indebted  to  him,  on 
book  and  by  several  notes,  the  exact  date  and  amount  not 
recollected,  but  amounting  in  the  whole,  together  with  the 
debt  on  book,  to  $1,500,  or  thereabouts."  At  the  making  of 
the  mortgage,  the  mortgagor  was  in  failing  circumstances, 
and,  in  order  to  secure  the  mortgagee,  it  was  necessary  to 
make  the  deed  before  the  exact  indebtedness  could  be  ascer- 
tained. The  amount  actually  exceeded  $1,500,  Held,  the 
mortgage  was  valid  against  creditors  and  subsequent  incum- 
brancers.^ 

22.  In  this  connection  may  be  considered  the  subject  of 
tacking.)  which,  though  as  a  distinct  right  or  claim  compara- 
tively unimportant,  as  will  be  seen,  in  American  law,  occu- 
pies much  space,  and  has  given  rise  to  numerous  and  nice 
questions  and  distinctions,  in  the  English  cases  ;  and  still 
continues  to  furnish  many  analogies  and  illustrations,  even 
where  the  doctrine  itself  is  for  the  most  part  obsolete. 

23.  With  more  particular  reference  to  the.  relative  rights  of 
successive  mortgagees,  which,  however,  is  only  one  of  the 
applications  of  the  word,  Judge  Story  defines  tacking^  as 
"  uniting  securities,  given  at  different  times,  so  as  to  prevent 
any  intermediate  purchasers  from  claiming  any  title  to  re- 
deem, or  otherwise  to  discharge,  one  lien,  which  is  prior,  with- 
out redeeming  or  discharging  the  other  liens  also  which  are 
subsequent  to  his  own  title.  Thus,  if  a  third  mortgagee, 
without  notice  of  a  second  mortgage,"  (at  the  time  of  taking 
his  mortgage,)  "  should  purchase  in  the  first  mortgage,  by 
which  he  would  acquire  the  legal  title,  the  second  mortgagee 

1  Chester  v.  Wheelwright,  15  Conn.        -  Hart  i'.  Chalkcr.  14  Conn.  77. 
562.  2  Merrills  v.  Swift,  18  Conn.  2o7. 


298  THE    LAW    OF   MORTGAGES.  [CH.  XII. 

would  not  be  permitted  to  redeem  the  first  mortgage,  with- 
out redeeming  the  third  mortgage  also;  for  in  such  a  case, 
equity  tacks  both  mortgages  together  in  his  favor.  And  in 
such  a  case  it  will  make  no  difference,  that  the  third  mort- 
gagee, at  the  time  of  purchasing  the  first  mortgage,  had  no- 
tice of  the  second  mortgage  ;  for  he  is  still  entitled  to  the 
same  protection."  ^  (c) 

24.  The  doctrine  of  tacking  has  been  defended  upon  various 
grounds.  It  is  said,  in  cequali  jure,  melior  est  conditio  possi- 
dentis. Where  the  equity  is  equal,  the  law  shall  prevail; 
and  he  that  hath  only  a  title  in  equity  shall  not  prevail  against 
a  title  by  law  and  equity  in  another.  So  the  right  has  been 
said  to  be  a  plank,  gained  by  the  third  mortgagee  in  a  ship- 
wreck, tabula  in  navfragio.  In  Wortley  v.  Birkhead,^  Lord 
Hardwicke  said  :  —  "As  to  the  equity  of  this  Court,  that  a 

1  Story's  Eq.  §  412.     See  Williams  English,  7  Beav.  10;  Watts  v.  Symes, 
V.  Owen,   13   Sim.   597;   Akhvorth  v.  8  Eng.  Law  &  Eq.  247  ;  Baker  u.  Pier- 
Robinson,  2  Beav.  287  ;  Pelby  v.  Wa-  son,  6  Mich.  523. 
then,  18  L.  J.  281,  N.  S. ;  Young  v.  ^  2  Ves.  573. 

(c-)  A  third  mortgagee  may  tack,  though  he  buy  in  the  first  mortgage 
pendente  lite,  pending  a  bill  by  the  second  mortgagee  to  redeem  it.  This  is 
upon  the  ground,  that  he  acijuires  the  right  by  the  act  o^  lending  the  money 
without  notice,  and  is  not  bound  to  take  measures  for  his  protection,  till 
actual  danger  occurs.  But  the  right  will  not  be  accorded  to  him,  after  a 
decree  to  settle  priorities.  Coote,  476,  478;  Brace  t*.  Duchess,  &c.  2  P. 
Wms.  491  ;  1  Eden,  530;  Bristol  v.  Hungerford,  2  Vern.  524;  Knott,  11 
Ves.  619.  If  a  creditor  by  judgment,  statute,  or  recognizance,  buys  in  the 
first  mortgage,  he  shall  not  tack  the  two  securities  ;  for  such  a  creditor  can- 
not be  called  a  purchaser,  nor  has  he  any  right  to  the  land  ;  having  neither 
jus  in  re  nor  ad  rem,  but  a  mere  lien,  which  it  is  doubtful  whether  he  will 
ever  enforce.  Besides  which,  the  judgment  creditor  does  not  lend  his  money 
on  the  immediate  view  or  contemplation  of  the  land,  nor  is  he  deceived  or 
defrauded,  though  his  debtor  had  before  made  twenty  mortgages  of  his  estate  ; 
but  a  mortgagee  is  defrauded  or  deceived,  if  the  mortgagor  has  already 
mortgaged  his  laud  to  another.  Coote,  478;  Brace  v.  Duchess,  &c.  2  P. 
Wms.  491 ;  2  Ves.  662.  And  it  is  said  if  the  first  mortgagee  takes  the 
assignment  as  trustee,  he  shall  not  tack  the  mortgages ;  otherwise,  a  mere 
stranger,  purchasing  the  third  mortgage,  and  declaring  he  had  bought  it  in 
trust  for  the  first  mortgagee,  might  tack  both  together,  and  defeat  all  the 
other  incumbrances.     Coote,  474  ;  Barnett  v.  Weston,  12  Ves.  130. 


CH.   XII.]    ESTATE   OF  THE  MORTGAGEE.  —  TACKING,   ETC.  299 

third  incumbrancer,  having  taken  his  security  of  mortgage 
without  notice  of  the  second  incumbrance,  and  then,  being 
puisne,  taking  in  tjie  first  incumbrance,  shall  squeeze  out  and 
have  satisfaction  before  the  second  ;  that  equity  is  certainly 
established  in  general,  and  was  so  in  Marsh  v.  Lee,  by  a  very 
solemn  determination  by  Lord  Hale,  who  gave  it  the  term 
of  the  creditor's  tabula  in  naufragio.  That  is  the  leading 
case.  Perhaps  it  might  be  going  a  good  way  at  first ;  but  it 
has  been  followed  ever  since  ;  and,  I  believe,  was  rightly 
settled  only  on  this  foundation  by  the  particular  constitution 
of  the  law  of  this  country.  It  could  not  happen  in  any  other 
country  but  this  ;  because  the  jurisdiction  of  law  and  equity 
is  administered  here  in  different  courts,  and  creates  different 
kinds  of  rights  in  estates.  And  therefore  as  courts  of  equity 
break  in  upon  the  common  law,  where  necessity  and  con- 
science require  it,  still  they  allow  superior  force  and  strength 
to  a  legal  title  to  estates  ;  and,  therefore,  where  there  is  a 
legal  title  and  'equity  on  one  side,  this  Court  never  thought 
fit,  that  by  reason  of  a  prior  equity  against  a  man  who  had  a 
legal  title,  that  man  should  be  'hurt ;  and  this,  by  reason  of 
that  force,  this  Court  necessarily  and  rightly  allows  to  the 
common  law  and  to  legal  titles.  But  if  this  had  happened 
in  any  other  country,  it  could  never  have  made  a  question ; 
for  if  the  law  and  equity  are  administered  by  the  same  juris- 
diction, the  rule  qui  prior  est  tempore  potior  est  in  jure  must 
hold."  So  Judge  Story  says  :  ^  —  "  When  we  come  to  the 
doctrine  of  tacking,  equity  there  looks  to  the  law,  and  stays 
its  hand  upon  that,  which  constitutes  a  legal  objection  to 
relief."  And  he  further  remarks,  upon  the  same  subject :  — 
"  If  a  second  equitable  incumbrancer,  without  notice  of  a 
prior  incumbrance,  has  by  his  diligence  acquired  a  better 
equity,  he  will  be  entitled  to  be  first  paid.  A  better  equity 
is  thus  acquired,  when  the  legal  estate  being  outstanding  in 
a  trustee,  a  second  incumbrancer  without  notice  of  a  prior 
incumbrance,  takes  a  protection  against  a  subsequent  incum- 

1  Gray  v.  Jenks,  3  Mass.  522. 


300  THE    LAW    OF    MORTGAGES.  [CH.  XII. 

brancer,  which  the  prior  incumbrancer  has  neglected  to  take. 
Thus,  for  example,  a  declaration  of  trust  of  an  outstanding 
term,  accompanied  by  a  delivery  of  the  creeds,  which  create 
and  continue  the  term,  will  give  a  better  equity  than  a  mere 
declaration  of  trust  to  a  prior  incumbrancer.  So,  where  a 
second  equitable  incumbrancer  has  given  notice  to  the  trus- 
tees, in  whom  the  legal  estate  is  vested,  he  will  thereby  ac- 
quire a  priority  over  a  prior  incumbrancer,  who  has  omitted 
to  give  such  notice."  ^ 

25.  The  same  author  refers  to  the  case  of  Harrison  v. 
Ferth,^  as  laying  the  foundation  of  this  doctrine  in  England. 
In  that  case  the  purchaser  of  an  estate,  having  notice  of  an 
incumbrance,  transferred  it  to  one  having  no  notice  ;  and  it 
was  held,  reversing  a  decision  of  the  Master  of  the  Rolls,  that 
the  second  purchaser  should  hold,  discharged  of  the  incum- 
brance. Judge  Story,  referring  to  this  decision,  remarks:^ 
"  This  doctrine  has  ever  since  been  adhered  to,  as  an  indis- 
pensable muniment  of  title.  And  it  is  wholly  immaterial,  of 
what  nature  the  equity  is,  whether  it  is  a  lien  or  an  incum- 
brance or  a  trust,  or  any  other  claim.  Indeed,  purchasers  of 
this  sort  are  so  much  favored  in  equity,  that  it  may  be  stated 
to  be  a  doctrine  now  generally  established,  that  a  bond  fide 
purchaser  for  a  valuable  consideration,  without  notice  of  any 
defect  in  his  title  at  the  time  of  his  purchase,  may  lawfully 
buy  in  any  statute,  mortgage,  or  other  incumbrance  upon  the 
same  estate,  for  his  protection.  If  he  can  defend  himself  by 
any  of  them  at  law,  his  adversary  will  have  no  help  in  equity 
to  set  these  incumbrances  aside."  So,  in  the  case  of  Ed- 
munds V.  Povey  ^  it  was  argued,  that  though  the  trade  of 
buying  in  incumbrances  had  been  formerly  countenanced, 
yet  it  was  in  truth  against  conscience,  and  contradictory  to 
many  established  rules  of  law  and  equity.  But  the  Lord- 
Keeper  told  the  counsel  he  wondered  they  laid  their  shoulders 
to  a  point  that  had  been  so  long  since  settled  and  received 

1  2  Story's  Kq.  1035a.  »  Story's  Eq.  §§  410,  411. 

•^  rrec.   Clia.  Gl  ;    1   Story's   Eq.  §  *  1  Verii.  Ib7. 

410.  .r         H    8 


CH.    XII.]     ESTATE    OF    THE    MORTGAGEE.  —  TACKING,    ETC.  301 

as  the  constant  course  of  chancery;  but  altliouf^h  lie  would 
not  change  the  rule  which  had  so  long  prevailed  in  that  Court, 
yet  it  might  be  he  would  do  so,  when  he  found  a  man  de- 
signing a  fraud,  and  thinking  to  make  a  trade  of  cozening  by 
the  rules  of  the  Court. 

26.  No  doctrine  of  the  law  has  been  more  generally  or 
more  severely  condemned  than  that  of  tacking:  Judge  Story 
says  :  —  "  There  is  certainly  great  apparent  hardship  in  this 
rule;  for  it  seems  most  conformable  to  natural  justice,  that 
each  mortgagee  should  in  such  a  case  be  paid  according  to 
the  order  and  priority  of  his  incumbrances.  It  is  assuming 
the  whole  case,  to  say  that  the  right  is  equal  and  the  equity 
is  equal.  The  second  mortgagee  has  a  prior  right,  and  at 
least  an  equal  equity  ;  and  then  the  rule  seoms  justly  to 
apply,  that  where  the  equities  are  equal,  that  title  which  is 
prior  in  time  shall  prevail.  It  has  been  significantly  said, 
that  it  is  a  plank  gained  by  the  third  mortgagee  in  a  ship- 
wreck. But,  independently  of  the  inapplicability  of  the 
figure,  which  can  justly  apply  only  to  cases  of  extreme 
hazard  to  life,  and  not  to  mel'e  seizures  of  property,  it  is 
obvious  that  no  man  can  have  a  right,  in  consequence  of  a 
shipwreck,  to  convert  another  man's  property  to  his  own  use, 
or  to  acquire  an  exclusive  right  against  a  prior  owner.  The 
best  apology  for  the  actual  enforcement  of  the  rule  is,  that  it 
has  been  long  established,  and  that  it  ought  not  now  to  be 
departed  from,  since  it  has  become  a  rule  of  property."  ^  In 
reference  to  the  same  subject  he  remarks,  "  some  of  these 
distinctions  are  extremely  thin,  and  stand  upon  very  artificial 
and  unsatisfactory  reasoning."  ^  So  Chancellor  Kent  says  :  3 
"  There  is  no  natural  equity  in  tacking,  and  when  it  super- 
sedes a  prior  incumbrance,  it  works  manifest  injustice.  By 
acquiring  a  still  more  antecedent  incumbrance,  the  junior 
party  acquires,  by  substitution,  the  rights  of  the  first  incum- 
brancer over  the  purchased  security,  and  he  justly  acquires 
nothing  more.     The  doctrine  of  tacking  is  founded  on  the 

1  2  Story's  Eq.  §§  413,  414.  -  1  Ibid.  §  419.  ^  4  Comni.  178. 

VOL.  I.  26 


302  THE    LAW    OF    MORTGAGES.  [CH.    XII. 

assumption  of  a  principle,  which  is  not  true  in  point  of  fact; 
for,  as  between  A.,  whose  deed  is  honestly  acquired,  and 
recorded  to-day,  and  B.,  whose  deed  is  with  equal  honesty 
acquired,  and  recorded  to-morrow,  the  equities  upon  the 
estate  are  not  equal.  He  who  has  been  fairly  prior  in  point 
of  time  has  the  better  equity,  for  he  is  prior  in  point  of  right." 
So  Duncan,  J.,  says  :^  — "  There  is  no  natural  equity  in  tack- 
ing debts,  and  where  it  interferes  with  the  rights  of  others,  it 
is  most  unjust." 

27.  Mr.  Coventry  Avas  of  opinion,^  that  the  English  law  of 
tacking  is  derived  from  the  Civil  Law.  But  Judge  Story 
denies  that  this  principle  was  adopted  in  the  Civil  Law.  He 
says,  the  rule,  qui  prior  est  in  tempore,  &c.,  was  applied,  ex- 
cept in  the  two  cases,  where  the  first  incumbrancer  consented 
to  the  second  pledge,  so  as  to  give  a  priority,  and  where  the 
second  pledge  was  for  money  to  preserve  the  property ;  and 
that  the  doctrine  referred  to  by  Mr.  Coventry  simply  gave  to 
a  third  mortgagee,  paying  off  a  first  mortgage,  the  same  pri- 
ority, by  way  of  substitution,  which  the  first  mortgagee  had, 
without  changing  his  rights  under  his  own  mortgage.  Judge 
Story  cites  various  passages  from  the  text  of  the  Civil  Law, 
which  he  supposes  to  have  been  wrongly  interpreted,  as  sus- 
taining the  doctrine  that  he  controverts.  He  comes  to  the 
conclusion,  that  none  of  them  go  further  than  to  authorize  a 
mortgagee  to  tack,  as  against  his  own  debtor,  a  second  loan, 
without  security,  when  the  debtor  seeks  to  redeem.^ 

28.  Upon  the  same  subject  he  remarks:* — "In  some  cases, 
by  the  Civil  Law,  a  sort  of  tacking  of  debts  could  be  insisted 
on  by  the  mortgagee  against  the  mortgagor;  but  not  against 
intermediate  incumbrancers."  "  It  is  clear  that  the  Civil  Law, 
in  the  case  of  the  mortgagor  seeking  to  redeem,  did  not  per- 
mit it,  unless  the  mortgagor  paid  not  only  the  debt  for  which 
the  mortgage  was  given,  but  all  other  debts  due  to  the  mort- 
gagee." But,  "  where  there  was  a  first  mortgage,  and  then  a 
second  mortgage,  and  then  the  first  mortgagee  lent  another 

1  Anderson  v.  Neff,  11  S.  &  K.  223.  s  i  story's  Eq.  §  415,  n. 

■^  2  Pow.  454,  n.  *  2  Ibid.  1010. 


CH.  XII.]     ESTATE   OP   THE   MORTGAGEE. — TACKING,  ETC.  803 

sum  to  the  debtor,  he  could  not  tack  it  against  the  second 
mortgagee.  Mr.  Chancellor  Kent  has  said,  that  in  the  Civil 
Law,  the  mortgagee  was  even  allowed  to  tack  another  incum- 
brance to  his  own,  and  thereby  to  gain  a  preference  over  an 
intermediate  incumbrance.  If,  as  I  presume,  his  meanin"  is, 
that  the  tacking  gave  a  preference  over  the  intermediate  in- 
cumbrancer, with  great  deference  I  do  not  find,  that  the  pas- 
sage cited  supports  tlie  doctrine ;  and  it  seems  contrary  to 
the  passages  already  cited.  There  are  other  passages  in  the 
code,  on  the  subject  of  a  subsequent  mortgagee,  acquirinf^ 
the  rights  of  a  first  mortgagee,  by  paying  his  mortgage,  and 
thereby  confirming  his  own  title  by  substitution.  But  it 
appears  to  me,  that  they  do  no  more  than  subrogate  the 
subsequent  mortgagee  to  all  the  rights  of  the  first  mortgagee, 
and  that  they  do  not  enlarge  those  rights.  Dr.  Brown,  too, 
insists,  that  a  mortgagee  might  tack  another  incumbrance  to 
his  mortgage  ;  and  if  he  lent  more  money  by  way  of  a  fur- 
ther charge  on  the  estate,  he  was  in  the  Civil  Law  preferred, 
as  to  this  charge  also,  before  a  mortgage  created  in  the  in- 
termediate time.  He  cites  the  Dig.  lib.  20,  &c.,  which  does 
not  (as  has  been  already  stated)  seem  to  support  the  conclu- 
sion."        ^ 

29.  As  already  suggested,  the  doctrine  of  tacking  is  not 
limited  to  questions  between  successive  mortgagees.  Nu- 
merous decisions  are  found  in  the  books,  which  relate  more 
especially  to  this  alleged  right,  as  between  the  mortgagee  mid 
mortgagor  themselves  ;  some  of  them  being  cases  of  different 
mortgages  between  the  same  parties,  where  a  part  of  the 
securities  were  defective  ;  and  others,  cases  of  independent 
claims,  not  secured  by  mortgage,  in  favor  of  the  mortgagee 
against  the  mortgagor. 

30.  Alderson  (Baron)  remarks  :  i  —  "  The  right  of  tacking 
seems  to  have  been  established  upon  this  principle :  that 
where  a  mortgagee  is  in  possession  of  the  legal  estate  in  two 
properties  as  a  security  for  money  lent  on  them,  a  court  of 
equity  will  not  allow  the  person  entitled  to  the  equity  of  re- 

1  AVhite  V.  Hillaci'e,  3  Y.  &  Coll.  608. 


304  THE    LAAV    OF    MORTGAGES.  •       [CH.  XII. 

demption  to  redeem  either  of  them,  unless  he  redeems  both  ; 
and  allows  the  mortgagee  a  lien  on  the  whole  for  his  whole 
debt."  So,  in  Purefoy  v.  Purefoy,^  it  was  stated  by  counsel 
as  clear  law,  and  not  denied  by  the  Court,  that  if  a  bill  was 
brought  to  redeem  two  mortgages,  and  more  money  lent 
upon  one  of  them  than  the  estate  was  worth,  the  plaintiff" 
should  not  elect  to  redeem  one,  and  leave  the  heavier  one 
unredeemed,  but  should  take  both  or  none.  So,  in  Shuttle- 
worth  V.  Laycock,^  it  is  said:  —  "  If  there  are  two  mortgages, 
and  one  is  defective,  if  the  mortgagor  will  redeem,  he  must 
take  both."  And,  in  Margrave  v.  Le  Hooke,^  a  party  having 
made  two  several  mortgages  of  distinct  estates,  and  died, 
and  his  heir  claiming  one  of  them  as  tenant  in  tail,  and  filing 
a  bill  to  redeem  the  other ;  held,  he  should  redeem  both  or 
neither.  So,  in  Pope  v.  Onslow,*  the  assignee  of  a  bankrupt 
filed  a  bill  to  redeem  a  mortgage  of  a  manor,  made  by  the 
bankrupt.  The  answer  alleged,  that  the  defendant  first  lent 
the  bankrupt  .£200  on  mortgage  of  a  particular  tenement, 
and  afterwards  £300  on  the  manor,  which  was  of  better 
value  than  the  money  due,  and  that  the  first  mortgage  was 
deficient  in  value.  Held,  the  plaintiff"  could  not  redeem  one 
without  redeeming  both.  And  although,  in  ex  j^rte  lving,° 
Lord  Hardwicke  questioned  the  decision  in  Pope  v.  Onslow, 
as  inaccurately  reported  ;  yet,  in  Titley  v.  Davis,^  the  same 
judge  held,  that  a  purchaser  of  one  of  two  mortgaged  estates 
must  redeem  both  estates,  even  as  to  the  debt  of  a  second 
mortgagee  of  the  other  estate,  who  had  filed  a  bill  to  redeem 
the  first  mortgage  after  the  sale.  So,  in  Roe  v.  Soley,'  the 
assignee  of  a  bankrupt  moved  to  stay  proceedings,  on  pay- 
ment of  principal,  interest,  and  costs,  due  upon  the  mortgage 
in  question ;  but  it  was  objected,  that  the  mortgagee  held 
two  other  mortgages  of  other  premises  made  by  the  bank- 
rupt; whereupon  the  Court  refused  to  order  a  redemption 
upon  the  terms  above  stated,  and  discharged  the  rule  with 

1  1  Vcrn.  29.  6  1  Atk.  300. 

'^  Ibid.  245.  6  2  Y.  &  C.  N.  R.  399. 

=*  2  Vcrn.  207.  '  2  Bl.  726. 

'  Ibid.  280. 


CH.  XII.]       ESTATE    OP    THE    MORTGAGEE. TACKING,  ETC.  305 

costs.  So,  in  Cator  v.  Charlton,^  Stokes  mortgaged  to  Charl- 
ton for  .£1,400.  Afterwards  Charlton  advanced,  at  dillerent 
times,  several  other  sums,  and  different  premises  were  added, 
and  made  redeemable  on  payment  of  £1,900  and  interest. 
These  securities  were  registered  ;  and  afterwards  the  mort- 
gagor assigned  to  the  plaintiff  the  premises  first  mortgaged. 
The  defendant,  the  mortgagee,  admitted  that  there  was  no 
agreement  that  the  first  premises  should  be  security  for  more  • 
than  £1,400  and  interest,  but  claimed  that  the  plaintiff  could 
not  redeem  without  paying  the  whole  sum  due ;  and  it  was 
decreed  accordingly.  The  same  doctrine  was  held  in  the 
cases  of  CoUett  v.  Munden,  and  Jones  v.  Smith."-^  And  in 
Ireson  v.  Denn,^  the  Master  of  the  Rolls  said,  he  did  not 
know  why  such  a  rule  was  ever  adopted,  but  it  had  been  in 
many  cases ;  and  he  proceeded  to  decree  accordingly. 

31.  The  doctrine  of  these  cases,  however,  has  been  severely 
criticized  and  somewhat  qualified  in  recent  decisions,  (d) 
Thus,  in  the  case  of  Hooper,  ex  parte,'^  Hopkins  demised  .to 
Ford  for  years,  by  indentures  of  mortgage,  subject  to  redemp- 
tion on  payment  of  £400.  Ford  afterwards  made  further 
advances,  and,  by  an  account  stated,  a  further  sum  of  £400 
appeared  to  be  due  him.  He  died,  and  Hopkins  became 
bankrupt.  The  petition  of  the  executors  of  Ford,  alleging 
that  it  was  understood  and  agreed,  that  the  second  sum  of 
£400  should  be  tacked,  and  a  further  mortgage  executed  for 
that  sum,  prayed  a  sale  of  the  premises,  and  an  application 
of  the  proceeds  to  the  payment  of  both  sums.     Lord  Eldon, 

1  Coote,  468.  ^  Coote,  425. 

2  Ibid.  469.  *  19  Ves.  477. 


(d)  In  Demainbray  v.  Metcalf,  Pr.  Ch.  421,  It  is  laid  down,  that  if  a  sum 
of  money  be  secured  by  mortgage,  the  mortgagor  would  not  be  admitted  to 
redeem  after  the  day  of  payment  was  elapsed,  without  also  paying  all  that 
was  due  to  the  mortgagee  on  notes  or  simple  contract.  But  Mr.  Coote  is  of 
opinion,  that  prior  to  St.  3  &  4  Will.  4,  a  mortgagee  could  not  have  tacked 
a  mere  simple  contract  debt  against  a  mortgagor ;  but  since  the  passmg  of 
'that  statute,  that  a  simple  contract  debt  may  be  tacked  against  the  heir  or 
devisee,  where  there  is  not  a  devise  for  payment  of  debts.  Coote,  471,  472. 
26* 


306  THE    LAW    OF    MORTGAGES.  [CII.  XII. 

after  remarking  upon  the  general  subject  of  mortgaging  by  a 
mere  deposit  of  title-deeds,  proceeds  to  say  : ' — "  I  have  more 
doubt  upon  my  own  decision,  the  addition  of  a  second  ad- 
vance ;  but  I  put  that  upon  the  very  ground,  that  the  rede- 
livery of  the  deed  is  an  idle  ceremony;  if  the  original  de- 
posit is  continued  with  an  agreement  for  a  further  advance, 
that  will  do.  I  speak  with  doubt  upon  this  ;  as  the  practice 
of  conveyancers  has  always  been,  and  the  law  is,  that  an 
original  mortgage,  vesting  the  legal  estate  by  a  contract  in 
writing,  cannot  be  added  to  by  parol.  There  never  was  a 
case,  where  a  man,  having  taken  a  mortgage  by  a  legal  con- 
veyance, was  afterwards  permitted  to  hold  that  estate  as  fur- 
ther charged,  not  by  a  legal  contract,  but  by  inference  from 
the  possession  of  the  deed.  The  other  cases  have  gone  far 
enough,  indeed  too  far  ;  and  I  will  not  add  to  their  authority, 
where  there  are  circumstances  distinguishing  the  case  before 
me."  So  the  defendant  mortgaged  freehold  and'  copyhold 
estates,  and  certain  drainage  bonds,  to  the  plaintiff,  and  by 
the  same  deed  his  daughters  mortgaged  their  freehold  and 
copyhold  estates,  to  secure  <£6,000  lent  by  the  plaintiff  to  the 
defendant,  the  deed  declaring,  that  without  prejudice  to  any 
of  the  rights  or  remedies  of  the  plaintiff,  his  heirs,  &c.,  as 
between  the  defendant,  his  heirs,  &c.,  on  the  one  hand,  and 
the  daughters,  their  heirs,  &c.,  on  the  other,  the  defendant, 
his  heirs,  &c.,  and  his  estates  described  in  the  mortgage, 
should  be  primarily  liable  for  the  £6,000.  Some  years 
afterwards,  the  defendant  mortgaged  the  same  estates  to  the 
plaintiff  to  secure  another  loan.  Held,  the  plaintiff  could 
not,  as  against  the  daughters,  tack  the  second  to  the  first 
mortgage,  but  they  might  redeem  on  payment  of  the  £6,000.^ 
So,  in  White  v.  Hillacre,^  James  Hillacre  mortgaged  Madgeon 
for  years,  to  Chane,  for  X500.  In  1808,  by  an  indenture,  to 
which  the  mortgagor  was  party,  the  mortgage  was  assigned 
to  Clark,  The  mortgagor  died,  devising  his  estate  (subject 
to  the  mortgage   and   other  charges)  to   Thomas  Hillacre. 

'  l'.»  Vc8.  477  a,  479.  «  3  Y.  &  Coll.  (Exc.)  597. 

^  liowker  i;.  Bull,  1  Siiu.  (New,)  29. 


CH.  XII.]     ESTATE    OF    THE   MORTGAGEE.  TACKING,   ETC.  liOT 

Thomas  also  owned  Wcsthay,  and  in  1812  mortgatro,!  it  for 
a  term  to  Clitsome,  as  security  for  a  bond  for  X  1,800  and 
died  in  1815,  owning  the  equity  of  redemption  in  ]\Ia(l<rcon 
and  Westhay;  and  having  devised  the  estates  to  diilerent 
persons.  In  1816,  Clark  assigns  to  Clitsome  the  Madgeon 
mortgage,  Clitsome  having  died,  the  plaintiff,  her  executor 
in  trust,  files  a  bill  in  equity  against  Henry  Ilillacre,  a  dcv- 
isee  of  Thomas,  his  children  and  others,  charging  that  the 
indentures  of  1808  were  executed  with  the  defendant's  ap- 
probation, and  that  Clitsome  subsequently  held  Madgeon  as 
security  both  for  the  balance  of  the  £1,800  mortgage  due  at 
the  time  of  the  sale  of  Westhay,  and  for  the  £500  debt  se- 
cured by  Madgeon,  and  praying  for  an  account,  and  that,  in 
defafllt  of  payment,  Madgeon  might  be  sold,  and  the  pro- 
ceeds applied,  first  to  the  X500  debt,  and  then  to  the  West- 
hay mortgage.  Held,  the  plaintiff  had  not  the  right  of  tack- 
ing, as  the  equity  of  redemption  belonged  to  different  persons, 
who  became  entitled  under  the  will  of  Thomas,  before  the 
Madgeon  mortgage  was  assigned  to  Clitsome ;  and  hence 
the  plaintiff,  the  representative  of  Clitsome,  could  not  hold 
the  Madgeon  security,  for  the  balance  of  the  Westhay  debt. 
32.  As  the  result  of  the  cases.  Judge  Story  states  the  law 
to  be,  that  "  Where  a  mortgagee  has  two  mortgages  on  dif- 
ferent estates,  separately  mortgaged  to  him  by  the  mortga- 
gor, and  one  of  them  is  a  deficient  security  for  the  debt,  and 
the  other  is  more  than  sufficient,  the  mortgagor  and  his  heirs 
will  not  be  permitted  to  redeem  one,  without  redeeming  the 
other.  And  if  the  equity  of  redemption  of  one  of  the  estates 
be  sold,  the  pm-chaser  will  not  be  permitted  to  redeem  that 
estate  (if  the  mortgage  has  become  absolute  at  law),  without 
redeeming  both  mortgages.  The  ground  of  this  doctrine  is, 
that  he  who  seeks  equity  must  do  equity  ;  and  a  court  of 
equity  will  not  assist  any  person  in  depriving  a  mortgagee 
of  any  security  which  he  would  have  against  the  mortga- 
gor." ^  (e) 

1  Story's  Eq.  §  1023,  n. 


(e)  With  regard  to  the  right  of  bringing  independent  accounts  between 


308  THE   LAW   OF   MORTGAGES.  [cil.  XII. 

33.  From  what  has  been  already  stated,  it  may  be  inferred 
as  a  general  principle, "that  tacking  is  not  allowed,  except  in 
favor  of  a  bond  fide  purchaser,  not  having  notice  of  the  prior 
incumbrance  when  he  took  his  original  security.  Hence  the 
doctrine  of  tacking  is  not  to  be  regarded  as  a  rule  of  Amer- 
ican law,  as  against  mesne  incumbrances  duly  registered  ; 
because  not  only  are  the  registry  acts  held  to  be  constructive 
notice,  but  the  acts  themselves,  in  effect,  declare  the  priority 
to  be  fixed  by  the  registration.^  It  is  said  :  —  "  The  doctrine 
of  tacking  is  not  admissible  in  our  courts,  it  being  inconsist- 
ent with  the  statute  providing  for  the  registry  of  deeds,  which 
establishes. a  different  principle  of  priority,  and  also  the  stat- 
ute which  prescribes  the  terms  on  which  the  mortgagor  is 
entitled  to  redeem."  ^  And  even  as  between  the  parties 
themselves,  the  doctrine  of  extending  the  lien  of  a  mortgage 
to  other  claims  than  those  expressly  agreed  to  be  thus  se- 
cured, or  of  imposing  upon  the  mortgagor,  as  a  condition  of 
redemption,  the  payment  of  all  debts  due  from  him  to  the 
mortgagee  ;  has  been  held  not  to  prevail  in  the  United 
States.  More  especially  is  this  the  case  in  a  court  of  law, 
and  where  a  legal  process  is  brought  to  enforce  the  mort- 
gage. (/)  . 

34.  In  an  early  case  in  Pennsylvania,^  the  mortgagor  be- 
came indebted  to  an  assignee  of  the  mortgage,  on  other  ac- 

1  1  Story's  Eq.  §  421,  n.  ;  1  Hill.  R.  in  Err.    112;   Bank,  &c.  v.  Finch,   3 

P.  400;  Palmer  v.  Fowley,   5   Gray,  Barb.  Ch.  298. 

548.      See  Siter   v.    McClanaclian,   2  ^  Per  Wilde,  J.,  Peabody  v.  Patten, 

Gratt.  280  ;  Brown  v.  Wright,  4  Yerg.  2  Pick.  520. 

(30;  Grant  v.  Bissett,  1  Gaines's  Gas.  ^  Darrow  t-.  Kelly,  Dall.  142. 


the  parties  into  the  redemption  of  a  mortgage,  it  is  said,  that,  if  the  right  to 
the  equity  of  redemption  is  in  dispute,  a  tender  will  not  stop  the  interest. 
If  there  is  an  open  account  between  the  parties,  and  a  balance  due  the 
mortgagor  ;  a  tender  of  the  sum  due,  after  deducting  such  balance,  will  not 
stop  the  interest  or  prevent  the  mortgagee's  recovering  costs.  Coote,  513, 
514. 

(/)  The  doctrine  of  tacking  is  said  to  have  been  first  attacked  and  ex- 
ploded in  the  case  of  Grant  v.  The  U.  S.  Bank,  (1  Gaines's  Gas.  in  Err.  112,) 
in  which  General  Hamilton  made  a  celebrated  artrument  against  it. 


CH.  XIT.]      ESTATE    OF    THE    MORTGAGEE. TACKING,  ETC.  309 

counts  than  the  mortgage  debt.  In  a  scire  facias  upon  the 
mortgage,  it  was  contended  for  the  plaintiff,  that  the  mort- 
gage should  stand  as  security  for  the  mortgagor's  whole  in- 
debtedness to  him  ;  but  the  Court  (Shippen  President)  ju'ld, 
that  being  a  court  of  law,  they  could  not  assume  chancery 
powers  ;  that  they  had  no  authority  to  foreclose  the  equity 
of  redemption,  or  to  impose  terms  upon  a  mortgagor  apply- 
ing to  redeem  ;  but  must  be  strictly  governed  by  the  act  of 
the  legislature  which  established  this  remedy.  "  This  act 
expressly  confines  the  remedy  of  the  mortgagee  to  the  re- 
covery of  the  principal  and  interest  due  on  the  mortgage ; 
and  the  proceedings  under  the  law  show  the  uniform  con- 
struction of  it.  The  scire  facias  is  to  show  cause  why  the 
land  should  not  be  sold  for  payment  of  the  principal  and  in- 
terest due  on  the  mortgage.  When  judgment  is  obtained, 
the  levari  facias  is  to  levy  tlie  principal  and  interest  money 
only.  There  is  no  penalty,  no  judgment  for  a  penalty,  and 
we  might  as  well  refuse  to  stay  proceedings  in  a  suit  on  a 
single  bill,  till  a  subsequent  debt  was  discharged,  as  in  this 
case  of  a  mortgage."  ^ 

35.  It  has  been  held  in  Massachusetts,  that  a  subsequent 
mortgagee,  upon  a  bill  in  equity,  shall  be  allowed  to  redeem 
a  prior  mortgage,  by  paying  the  sum  due  thereon,  though 
the  defendant  has  another  claim  upon  the  property,  subject 
to  the  plaintiff's  mortgage  ;  unless  the  defendant  files  a 
cross-bill  to  redeem  the  subsequent  mortgage.^  The  Court 
remark :  ^  —  "  The  defendants'  title  under  the  mortgages  made 
prior  to  the  plaintiff's  mortgage,  and  theh-  title  to  the  equity 
under  Congdon  by  a  conveyance  from  him  subsequent  to 
the  plaintiff's  mortgage,  cannot  merge  so  as  to  defeat  the 
plaintifi''s  title."  So  the  plaintiff  brought  a  bill  to  redeem 
an  equity  of  redemption  sold  on  execution  ;  and  the  defend- 
ant in  his  answer  stated,  that  the  plaintiff  owed  him  other 
sums  of  money,  that  he  was  insolvent,  and  that  the  defend- 
ant purchased  the  equity  merely  that  he  might  obtain  sat- 

1  Darrow  v.  Kelly,  Dall.  145.  ^  Green  v.  Tanner,  p.  423. 

2  Green  v.  Tanner,  8  Met.  411. 


310  THE    LAW    OF    MORTGAGES.  [CH.  XII. 

isfaction  of  some  of  those  debts,  and  submitted  that  the 
Court  would  not  decree  a  reconveyance  without  payment 
of  the  balance  due  him.  Wilde,  J.,  says  :  —  "It  is  very  clear 
that  the  jDlaintifF  is  entitled  to  redeem  on  the  repayment 
of  the  purchase-money  and  the  interest.  The  right  is  ex- 
pressly given  by  statute,  and  cannot  be  charged  with  other 
independent  demands,  according  to  the  doctrine  of  tacking 
as  adopted  by  the  English  courts  of  equity."^  And  upon  the 
same  principle,  and  for  a  stronger  reason,  any  payment  made 
upon  the  mortgage  cannot  be  applied  by  the  mortgagee  to 
other  claims.  Thus,  in  the  case  of  Hicks  v.  Bingham,^ 
Pepoon  mortgaged  the  demanded  premises,  with  another 
tract,  to  the  defendant,  to  secure  five  notes  ;  and  the  equity 
of  redemption  came  into  the  hands  of  the  plaintiff.  Pepoon 
afterwards  assigned  the  other  tract  to  Willard,  and  the  de- 
fendant subsequently  released  it  to  Willard,  and  immediately 
afterwards  entered  upon  the  demanded  premises  for  breach 
of  condition,  and  had  remained  in  possession  ever  since. 
The  plaintiff  afterwards  paid  to  the  defendant  certain  sums 
of  money,  which,  with  the  amount  paid  by  Willard  and  the 
rents  of  the  estates,  were  alleged  to  cover  the  mortgage  debt. 
Upon  a  bill  in  equity  to  redeem,  the  question  was,  whether 
the  defendant  was  bound  to  apply  the  sum  paid  by  Willard 
to  the  mortgage  debt,  or  had  a  right  to  apply  it  to  other 
claims  against  Pepoon.  It  was  held,  that  it  must  be  applied 
to  the  mortgage,  having  been  received  in  consequence  of  the 
mortgage,  and  for  a  release  of  a  part  of  the  mortgaged 
premises. 

36.  In  Tennessee,  where  a  person  borrowed  money,  and 
secured  his  indorsers  by  a  deed  of  trust ;  and  he  afterwards 
borrowed  money  with  the  same  indorsers,  applied  it  in  part 
payment  of  the  former  debt,  and  died :  held,  the  dower  of 
the  widow  was  chargeable  with  the  unpaid  balance  in  the 
deed  of  trust,  but  the  indorsers  could  not  tack  to  the  deed 
the   subsequent  debt.^     So   in    Kentucky,   a   mortgage   was 

'  3  Pick.  48.     See  Palmer  v.  Fow-        -  11  Mass.  300. 
ley,  6  Gray,  645.  a  Qj-eer  u.  Chester,  7  Hiimpli.  77. 


CH.  XII.]      ESTATE    OF    THE    MORTGAGEE. TACKING,  ETC.  311 

given  to  A.  by  B.,  dated  in  1795.  C.  became  assignee  of- a 
lien  on  the  land,  created  by  B.  in  1802.  Subsequently,  A. 
obtained  a  decree  for  an  alleged  balance  due  on  his  mort- 
gage. C.  obtained  an  injunction  against  the  decree,  alleging 
that  the  debt  was  wholly  or  nearly  paid,  in  answer  to  which 
A.  relied  on  other  advances  made  on  the  faith  of  the  mort- 
gage. Held,  such  advances  upon  simple  contract  on  land 
could  not  be  tacked  to  the  prejudice  of  C.^  So,  in  Illinois,  a 
subsequent  mortgagee  has  priority  of  advances  made  by  the 
former  mortgagee,  having  notice  of  the  second  mortgage.'^ 
So  in  Vermont  it  is  held,  that,  where  the  assignee  of  a  mort- 
gage which  has  become  due,  brings  an  action  upon  it,  and 
holds  another  one  which  was  not  due  at  the  commencement 
of  suit ;  the  mortgagor  may  redeem  upon  payment  of  the 
former.'^  [g) 

37.  In  some  of  the  States,  however,  the  doctrine  of  the 
English  law  seems  to  have  been  adopted  or  recognized. 
Thus  in  Connecticut,  in  the  case  of  Scripture  v.  Johnson,* 
the  plaintiff  mortgaged   to   secure   a   note   for  fifty  dollars. 

1  Hucrhes  v.  Worley,  Bibb,  200.   But  2  prye  v.  Bank,  &c.,  11  111.  367. 

see   Downing   v.  Palmateer,  1  Moiir.  ^  Lamson  v.  Sutherland,  13  Verm. 

64  ;  Hardin,  6  ;  1  A.  K.  Mar.  287  ;  7,  309. 

401.  *  3  Conn.  211. 


{g)  Mortgage  to  secure  a  money  bond.  To  a  suit  for  foreclosure,  the 
defendants  answered,  that  the  bond  and  mortgage  were  made,  to  secure 
judgments  in  ftivor  of  third  persons  against  the  mortgagor,  assigned  to  the 
mortgagee,  which  had  since  been  satisfied  by  execution  sales  of  other  prop- 
erty of  the  mortgagor.  Proofs  were  taken  in  support  of  the  defence,  and 
the  phuntifF  then  offered  evidence  of  payments  made  by  him  for  the  mort- 
gagor since  the  date  of  the  bond  and  mortgage,  and  other  judgments  against 
the  mortgagor,  since  assigned  to  the  mortgagee.  Held,  under  the  pleadings, 
the  plaintiff  could  not  have  a  decree  for  a  sale  to  raise  the  latter  sums. 
Hopper  V.  Sisco,  1  Halst.  Ch.  343.  Two  mortgages,  and  a  subsequent  judg- 
ment against  the  mortgagor  in  favor  of  the  first  mortgagee,  who  purchased 
the  equity  of  redemption  at  a  sale  under  the  judgment,  and  brings  a  bill 
against  the  second  mortgagee  to  foreclose.  Held,  he  could  not  require  pay- 
ment of  the  judgment.  M'Kinstry  r.  Mervin,  3  Johns.  Ch.  4GG  ;  ace.  Bur- 
nett I'.  Dennison,  5,  35  ;  Tanner  v.  Wells,  8  Ham.  136. 


312  THE    LAW    OF   MORTGAGES.  [CH.  XII. 

The  note  and  mortgage  were  assigned,  and  the  assignee 
brought  ejectment  against  the  plaintiff,  recovered  judgment, 
and  took  possession  under  an  execution.  The  plaintiff  was 
also  indebted  to  another  person  by  bond,  who  brought  a  suit 
upon  it,  and  recovered  judgment  and  execution,  and  assigned 
the  execution  to  the  assignee  of  the  mortgage.  The  assignee 
levied  the  execution  upon  the  mortgaged  premises  by  ap- 
praisement in  the  name  of  the  original  obligee,  who  trans- 
ferred the  title  to  the  assignee.  The  plaintiff  brings  a  bill  to 
redeem  the  mortgage.  The  Court  say  :  ^  —  "  There  is  no 
doubt  as  to  the  right  of  the  plaintiff  to  redeem  the  whole  of 
the  premises  mortgaged ;  but  as  he  who  will  have  equity 
must  do  equity,  it  must  be  on  condition  not  only  of  paying 
the  sum  charged  upon  the  land,  but  the  debt  collaterally  due 
to  the  mortgagee."  So  it  has  been  said  by  the  same  Court : 
"  Whenever  he  (the  mortgagor)  brings  a  bill  to  redeem,  the 
rule,  that  he  who  seeks  equity  must  first  do  equity,  will 
be  applied.  And  hence  it  is,  that  if  the  mortgagor  owe  a 
collateral  debt  to  the  mortgagee,  he  will  not  be  entitled  to 
redeem,  without  paying  such  debt,  as  well  as  that  secured 
by  the  mortgage."^  And  in  the  same  case^  it  was  held,  in 
analogy  to  the  doctrine  of  tacking,  and  upon  the  general 
principle,  that  he  who  seeks  equity  must  first  do  equity,  that 
an  execution  creditor  of  the  mortgagor  should  not  be  allowed 
to  redeem,  where  his  claim  was  founded  upon  the  accidental 
omission  of  the  word  heirs,  in  a  trust  conveyance  from  the 
mortgagor,  and  the  consequent  alleged  transfer  of  only  a  life- 
estate  instead  of  a  fee  by  such  deed.  So,  in  a  late  case,  it 
is  held,  that  a  mortgagee  may  take  another  mortgage,  which 
will  be  valid  against  an  intervening  incumbrance  implied  by 
equitv,  of  which  he  had  neither  actual  or  implied  notice ; 
like  that  of  a  surety  in  the  note  secured  by  the  first  mort- 
gage, where  the  note  is  in  form  a  joint  and  several  one."^ 
38.  In  Maryland,  the  following  distinctions  are  made :  — 

'  3  Conn.  213.  3  jq  Conn.  251. 

'^  Clianiberluin     v.    Thompson,     10         *  Orvis  v.  Newell,  17  Conn.  97.    But 
Conn.  2.J1.  see  Unborn  v.  Carr,  12  Conn.  lUS. 


CH.  XII.]     ESTATE   OF   THE    MORTGAGEE. — TACKING,    ETC.  313 

«  If  a  mortgagor  goes  into  chancery  to  redeem,  upon  tiic 
axioms  of  equity  above  mentioned,"  (that  he  who  seeks 
equity  must  do  equity,  and  a  multiplication  or  circuity  of 
action  should  be  avoided,)  "  he  will  not  be  permitted  to  do 
so,  but  upon  payment  not  only  of  the  mortgage  debt,  but  of 
all  other  debts  due  from  him  to  the  mortgagee.  But  if  the 
mortgagee  seek  a  foreclosure  in  chancery,  the  mortgagor  will 
be  permitted  to  redeem  upon  payment  of  the  mortgage  debt 
only,  no  matter  to  what  amount,  on  other  accounts,  he  may 
stand  indebted  to  the  mortgagee,  (h)  And  if  a  subsequent 
mortgagee  or  judgment  creditor  file  a  bill  to  redeem,  he  will 
be  permitted  to  do  so  upon  the  payment  of  the  mortgage 
debt  alone."  ^  And  in  another  case,^  Bland,  Chancellor, 
says  :  —  "  Where  a  mortgagee  has  made  further  advances  to 
the  mortgagor,  and  taken  his  bond,  binding  himself  and  his 
heirs  to  secure  payment,  the  mortgagee  may  tack  such  bond 
debt  to  his  mortgage  as  against  the  heir  or  devisee  of  the 
mortgagor,  who  shall  not  be  allowed  to  redeem  without  pay- 
ing the  bond  as  well  as  the  mortgage  debt.  This,  however, 
is  solely  a  matter  of  arrangement  to  prevent  circuity  of  suits; 
for,  in  natural  justice,  the  claim  has  no  foundation.  But  this 
tacking  of  the  bond  debt  to  the  mortgage  is  never  allowed, 
in  any  case,  to  the  prejudice  of  creditors,  whose  claims  as  to 
the  bond  debt,  are  of  equal  degree."  (i) 

39.  In  Virginia,  the  doctrine  of  tacking  seems  to  have 
been  recognized.^  Thus,  where  a  married  woman,  under  a 
power  in  a  marriage  settlement,  had  given  a  mortgage  on  her 
separate  estate,  to  secure  a  debt  which  she  had  contracted, 
and  afterwards  obtained  a  further  loan  from  the  mortgagee ; 

1  Per  Dorsey,  J.,  Lee  v.  Stone,  5  G.        '^  Coombs  v.  Jordan,  3  Bland,  330. 

6  Johns.  21,  22 ;  Chase  v.  M'Douald,        ^  Robertson    v.    Campbell,    2    Call, 

7  Har.  &  J.,  160.  362. 


(/i)  This  distinction  is  said  to  run  through  all  the  cases  on  the  subject  of 
tacking.     2  Greenl.  Cruise,  147,  n.  1. 

(i)  A  statute  of  this  State  provides,  that  a  mortgage  is  valid  only  for  what 
appears  upon  the  face  of  it.     Md.  L.  825. 

VOL.  I.  27 


314  THE    LAW    OF    MORTGAGES.  [CH.  XIT. 

upon  a  bill  filed  by  her  trustee  to  redeem,  held,  she  must 
pay  the  latter  debt,  if  the  interest  of  third  persons  was  not 
affected.!  So,  in  Ohio,  where  a  party  purchased  lands,  sold 
under  a  decree  to  satisfy  a  mortgage,  for  a  sum  exceeding 
the  amount  decreed  ;  held,  he  might  apply  the  surplus  in  his 
hands  to  the  redemption  of  an  elder  mortgage.^  So,  in  South 
Carolina,  where  a  mortgagor  comes  into  equity  to  redeem, 
and  the  mortgage  would  not  be  treated  as  such  at  law ;  he 
must  pay  all  that  is  due  the  mortgagee,  on  any  account,  in 
order  to  redeem.^  So,  in  Kentucky,  in  order  to  redeem,  it  is 
held  that  the  mortgagor  must  pay  all  equitable  as  well  as 
legal  claims  against  him,  and  must,  therefore,  paysubsequent 
advances  made  by  the  mortgagee.* 

40.  Upon  this  subject,  Mr.  Greenleaf  makes  the  following 
remarks :  —  "  The  doctrine  oi  tacking,  though  now  established 
in  England,  is  there  taken  with  this  most  important  qualifica- 
tion, that  the  party  who  seeks  to  avail  himself  of  it  is  a  bond 
fide  purchaser,  without  notice  of  the  prior  incumbrance,  at  the 
time  when  he  took  his  original  security ;  for  if  he  then  had 
such  notice,  he  has  not  the  slightest  claim  to  the  protection 
or  assistance  of  a  court  of  equity."  ^  He  proceeds  further  to 
remark  as  follows,  with  more  particular  reference  to  the  ap- 
plication of  the  doctrine  of  tacking  in  the  case  of  heirs,  who, 
by  the  English  law,  are  directly  bound  by  the  bond  debts  of 
the  ancestor  :  —  "In  the  settlement  of  estates,  it  is  a  cardinal 
rule  of  American  law,  that  all  the  property  of  the  deceased  is 
charged  as  a  trust  fund  for  the  payment  of  his  debts.  The 
personalty  is  first  to  be  exhausted,  after  which  the  executor, 
on  application  to  the  proper  court,  obtains  license  to  sell  all 
or  so  much  of  the  real  estate  as  may  be  necessary  to  pay  the 
remaining  debts;  the  proceedings  being  regulated  by  statutes. 
Ordinarily,  therefore,  remedy  can  be  had  in  the  first  instance, 
only  against  the  executor  or  administrator ;  the  heir  being 

1  Woodson  V.  Perkins,  5  Gratt.  345.  *  Reed  v.  Landsale,  Hardin,  6  ;  Ogle 

But    see    Colquhonn   i-.    Atkinson,   6  v.  Sliip,  1  A.  K.  Mar.  287  ;  Nelson  v. 

Munf.  550.  Boyce,  7  J.  J.  Mar.  401.  See  Bibb,  200. 

-  Cowles  V.  Raguet,  14  Ohio,  38.  ^  2  Greonl.  Cruise,  141,  n. 

8  Walling  V.  Aikin,  1  McMul.  Ch.  1. 


CH.  Xir.]     ESTATE    OF    THE    MORTGAGEE. TACKING,    ETC.  315 

liable  only  in  regard  to  those  debts,  for  which  no  action  could 
have  been  had  against  the  personal  representatives  within 
the  period  mentioned  in  the  statutes  limiting  such  actions. 
Royce  v.  Burnell,  12  Mass.  395 ;  Webber  v.  Webber,  7  Oreenl. 
127.  The  land  descends  to  the  heir,  upon  the  death  of  the 
ancestor  ;  his  title  being  liable  to  be  divested  by  a  sale  by 
the  executor  or  administrator,  as  above  stated.  Gibson  v. 
Farley,  16  Mass.  280.  If  he  should  apply  to  redeem  a  mort- 
gage of  Ids  ancestor,  in  those  States  in  which  statute  pro- 
visions exist,  entitling  the  niortgagor  to  redeem  on  payment 
of  the  mortgage-money,  it  is  conceived  that  the  doctrine  in 
the  text  (to  wit,  that  the  heir  of  the  mortgagor  cannot  redeem 
a  mortgage  made  by  the  ancestor,  without  paying  off  the 
money  due  upon  a  bond,  for  another  debt)  could  not  be  ap- 
plied to  his  case.  But  in  all  other  cases  where  the  redemp- 
tion of  the  land  would  immediately  constitute  it  assets  in  the 
hands  of  the  heir,  in  respect  to  which  he  would  be  liable,  to 
the  same  creditor  on  the  obligation  of  his  ancestor,  the  prin- 
ciple in  the  text,  of  avoiding  circuity  of  action,  would  doubt- 
less be  applied  by  a  court  of  equity  here,  as  in  England."  ^ 

41.  Somewhat  analogous  to  the  practice  of  tacking,  and 
indeed  often  spoken  of  in  the  books  under  that  name,  is 
the  alleged  right  of  a  mortgagee  to  hold  his  mortgage  as 
security  for  advances  or  liabilities,  made  or  incurred  subse- 
quently to  the  date  of  the  mortgage,  but  by  virtue  of  an 
express  provision  contained  therein,  or  an  express  agreement 
concurrent  therewith.  It  is  this  last  circumstance,  which 
constitutes  the  fundamental  distinction  between  these  two 
rights  and  privileges  of  a  mortgagee  ;  tacking,  in  the  strict 
sense  of  the  term,  being  wholly  founded  in  a  construction  of 
equity,  while  the  right  to  hold  land  mortgaged  as  security  for 
future  demands  rests  entirely  or  chiefly  upon  the  agreement 
of  the  parties,  [j) 

1  2  Greenl.  Cruise,  142,  n.  1  ;  Elvy  v.  Norwood,  11  Eng.  Law  &  Eq.  224. 


U)  See  Chase  v.  M'Donald,  7  Har.  &  J.  160  ;  Murray  v.  Barney,  24  Barb. 
336.     See  also  4  Kent,  175  ;  1  Hilliard,  R.  P.  401  ;  Watson  v.  Dickens,  12 


316  THE    LAW    OF    MORTGAGES.  [CU.    XII. 

42.  The  question,  of  the  validity  of  a  mortgage  to  cover 
future  advances  or  liabilities,  may  arise  under  several  differ- 
ent aspects.  One  inquiry  is,  what  language  in  the  deed 
itself,  or  what  evidence,  independent  of  the  deed,  is  necessary 
and  sufficient  to  create  such  a  security.  There  is  also  a 
manifest  distinction,  between  the  principle  of  making  a  mort- 
gage to  be  a  security  for  subsequent  debts  as  between  the 
parties  themselves,  and  that  of  giving  it  the  same  extended 
operation  as  against  third  persons,  holding  other  liens  upon 
the  estate.  So  also  the  question  arises,  in  connection  with 
such  adverse  claims,  how  far  the  subsequent  incumbrancers 
are  bound  by  the  notice  arising  from  registration;  and 
whether  the  first  mortgagee  shall  hold  for  advances  made 
after  the  making  and  recording  of  the  second  mortgage. 
Most  of  the  cases  upon  this  subject  have  turned  upon  the 
conflicting  rights  of  mortgagees,  claiming  under  such  a  mort- 
gage, on  the  one  hand,  and  general  creditors  of  the  mortga- 
gor, alleging  that  the  conveyance  was  per  se  invalid  or  fraud- 
ulent, or  subsequent  mortgagees  of  the  same  property,  on 
the  other.  (A;) 


Sm.  &  M.  608 ;  Craig  v.  Tappin,  2  Sandf.  Ch.  78  ;  Quinebaug,  &c.  v.  French, 
17  Conn.  129  ;  Coote,  441  :  Clark  v.  Bull,  2  Root,  329  ;  Torrey  i'.  Bank,  &c. 
9  Paige,  649  ;  U.  States  v.  Hooe,  3  Cranch,  73  ;  North  v.  Crowell,  11  N.  H. 
251;  MoDaniels  v.  Colvin,  16  Verm.  300;  James  v.  Morey,  2  Cow.  246; 
Beekman  v.  Frost,  18  Johns.  544;  Van  Wagner  v.  Van  Wagner,  3  Halst. 
Ch.  27  ;  Mobile,  &c.  v.  Talman,  15  Ala.  472  ;  Whiting  v.  Beebe,  7  Eng.  421 ; 
Utley  V.  Smith,  24  Conn.  290  ;  Huntington  c.  Cotton,  31  Miss.  253  ;  Rowan 
V.  Sharps'  ac.  29  Conn.  282;  Seaman  v.  Fleming,  7  Rich.  Eq.  283  ;  Bayler 
*'.  Commonwealth,  40  Penn.  37.  It  is  held  in  a  late  case,  that,  where  the 
mortgage  is  to  secure  all  debts,  it  is  proper,  upon  a  bill  to  redeem,  to  exam- 
ine all  antecedent  dealings  not  shown  to  have  been  settled.  Williamson  v. 
Downs,  34  Miss.  402.  Also,  that  a  mortgage  to  secure  future  advances  to  a 
specified  amount  is  a  valid  security  as  against  subsequent  incumbrances,  for 
all  advances  made  up  to  the  time  of  such  incumbrances.  Bell  v.  Fleming,  1 
Beasl.  13 ;  S.  C.  Ibid.  490.  And  it  is  not  necessary  that  the  mortgage 
shoulil  be  expressed  to  be  security  for  future  advances.     Ibid. 

(A)  Chancellor  Kent  says,  (4  Comm.  136,  n   a,)  "  In  the  Roman  law,  the 
mortgage  could  be  held  as  a  security  for  further  advances.     The  mortgagee 


CH.  XII.]     ESTATE    OF    THE    MORTGAGEE.  —  TACKING,    ETC.  817 

43.  The  general  doctrine  has  been  stated  l)y  eminent 
judges,  as  follows  :  —  "  The  giving  collateral  security,  to  in- 
demnify  against  liabilities  to  be  incurred  thereafter,  is  liable 
to  some  suspicion  on  the  ground  of  fraud  ;  but  there  is  no 
objection  to  such  a  transaction,  if  it  be  explained  and  proved 
to  be  fair."  ^ 

44.  "  A  mortgage  made  bond  fide  for  the  purpose  of  secur- 
ing future  debts,  expected  to  be  contracted,  in  the  course  of 
dealings  between  the  parties,  is  a  good  and  valid  security."  ^ 

45.  "  In  many  cases  a  subject  pledged  for  a  debt  may  be 
considered  as  a  security  for  further  loans.  I  see  no  possible 
objection  to  it,  if  no  intervening  right  exists,  to  prevent  the 
justness  of  the  application  of -the  rule,  and  the  plaintiff  has  no 
such  intervening  equity.  It  was  a  rule  of  the  civil  law,  as 
was  well  shown  by  the  Supreme  Court  of  Massachusetts,  in 
Jarvis  v.  Rogers,  (15  Mass.  389,)  that  if  the  debtor  pledged 
property  to  secure  a  debt,  and  afterwards  another  debt  was 
contracted,  the  creditor  might  retain  for  both  debts,  pro- 
vided there  was  nothing  to  negative  the  presumption  of  an 
implied  contract  that  the  pledge  should  be  so  applied.  In 
the  present  case,  the  deed  being  absolute  in  its  terms,  and 
the  defeasance  by  agreement  resting  in  parol,  the  application 
of  the  deed,  as  a  security  for  future  responsibilities,  of  what- 
ever kind,  becomes  more  easy  and  flexible  ;  and,  as  between 
parties,  it  is  perfectly  plain  that  it  ought  to  be  so  held.  It 
is  only  when  the  rights  of  third  persons  are  prejudiced  by 
want  of  notice,  &.C,,  that  the  extension  of  the  security  is 
prevented."  ^  {I) 

1  Per  Putnam,  J.,  Gardner  v.  Web-  Cow.  246 ;  Johnson  v.  Bourne,  2  Y.  & 

ber,   17  Pick.  414.      See  Atkinson  v.  Coll.  268;  Lyle  v.  Ducomb,  5  Binn. 

Maling,   2   T.   K.  462;    Edmonds    v.  585;  Booth  r.  Barnum,  9  Conn.  280. 

Crenshaw,    1    McC.    Ch.    265  ;    Hen-  -  Per  Wilde,  J.,  Commercial,  .<:c.  v. 

dricks  v.  Robinson,  2  Johns.  Cha.  283  ;  Cunningham,  24  Pick.  274. 

U.  States  V.  Hooe,  3  Cranch,  73 ;  Co-  *  Per  Kent,    Ciiancellor,   James    r. 

nard  v.  Atlantic,  &c.  1  Pet.  448  ;    2  Johnson,  6  Jolins.  Cha.  429. 

was  allowed  to  tack  subsequent  debts,  in  the  case  of  the  mortgagor  seeking 
redemption,  though  this  was  not  permitted  to  the  extent  of  impairing  the 
rights  of  intermediate  incumbrancers." 

(0  In  Shepard  v.  Shepard,  6  Conn.  41,  the  restriction  upon  the  right  to 
27* 


318  THE   LAW    OF   MORTGAGES.  -[CH.  XII. 

46.  And  a  mortgage,  really  given  to  secure  future  advances, 
or  as  a  general  security  for  future  balances,  may  be  taken  in 
the  form  of  a  mortgage  for  a  specific  sum,  sufficient  to  cover 
the  floating  debt  intended  to  be  secured.^  Whittlesey,  V.  C, 
says  :  —  "A  mortgage  may  unquestionably  be  taken  and 
held  as  a  security  for  future  advances  and  responsibilities ; 
but  it  is  contended  that  (the  principle)  is  only  applicable 
when  the  mortgage  upon  its  face  provides  for  security  for 

1  Bank,  &c.  v.  Finch,  3  Barb.  Ch.  293. 


hold  property  mortgaged,  as  security  for  future  advances,  was  thus  ex- 
pressed :  —  "  No  creditor,  on  inspecting  the  record,  can  know  whether  there 
is  any  lien  on  the  premises,  except  eight  hundred  dollars,  nor  be.  furnished 
with  any  means  of  information  on  the  subject."  There  is  peculiar  ground 
for  suspicion,  where  the  mortgage  is  really  made  to  secure  future  advances, 
but  does  not  purport  to  be  given  for  that  purpose.  In  such  case,  strict 
proof  of  consideration  will  be  required.  Craig  u.  Tappin,  2  Sandf.  Cha.  78. 
In  the  same  case,  such  a  mortgage  was  held  to  be  effectual  for  the  amount 
advanced  prior  to  the  second  raoi'tgage,  though  the  first  mortgagee  knew  of 
the  mortgagor's  intention  to  make  the  second  mortgage,  to  secure  a  pre- 
existing debt ;  but  not  for  advances  made  subsequent  to  the  second  mort- 
gage. Ibid.  It  is  held  in  Illinois,  that  a  mortgage,  taken  to  secure  future 
advances,  is  valid,  although  it  does  not  show  upon  its  face  the  real  charactett 
of  the  transaction.  In  such  a  case,  the  mortgagee  can  only  recover  the 
amount  actually  due  at  the  date  of  the  sale  of  the  equity  of  redemption.  Col- 
lins r.  Carlile,  13  111.  254.  In  Virginia,  a  mortgage  to  secure  all  debts  due, 
and  all  suretyships  of  the  mortgagee  for  the  mortgagor,  is  a  valid  security  for 
liabilities  existing  at  the  time.  Vanneter  v.  Vanneter,  3  Gratt.  148.  In 
Ohio,  where  a  mortgage  contains  a  provision  to  secure  future  advances,  a 
second  mortgage  will  have  precedence,  to  the  extent  of  all  advances  made 
after  it  is  recorded.  Spader  v.  Lawler,  17  Ohio,  371.  A  mortgage  abso- 
lute on  its  face,  but  actually  in  trust,  and  the  trust  declared  by  a  deed  \o 
lead  uses,  secured  to  the  mortgagees,  K.  and  S.,  their  debts  due  from  the 
mortgagor,  their  luture  advances  to  him,  in  payment  of  existing  claims,  and 
secondly,  to  A.,  B.,  C,  and  D.,  their  debts  at  the  time  of  execution  of  the 
mortgage,  and  to  E.  SlOO.  Held,  that  the  claim  of  S.  existing  at  the  time 
of  the  mortgage  had  priority  over  the  future  advances  of  K.  Also,  that  the 
mortgagee  was  entitled  to  payment  of  his  advances  and  his  payments  to 
protect  the  trust  fund,  before  any  payments  made  to  A.  Speer  v.  Whitfield, 
2  Stockt.  107. 


CH.  XII.J     ESTATE   OP   THE   MORTGAGEE.  —  TACKING,   ETC.  310 

future  advances  and  responsibilities.  This  mortgage  is  taken 
to  secure  $30,000  stated  therein  to  have  been  paid  by  the 
mortgagee  to  the  mortgagor;  and  it  is  recorded  for  that 
sum,  which  is  all  that  the  record  expresses.  If  there  had 
been  no  money  actually  paid,  would  the  mortgagor  be  pro- 
hibited by  his  signature  to  the  instrument  from  showing 
that  fact  by  parol  ?  If  the  mortgagee  had  not  advanced  the 
money  until  three  months  after  the  execution  of  the  mort- 
gage, would  he  be  prohibited  from  showing  this  fact  by 
parol?  The  parol  evidence  was  admissible,  not  for  the  pur- 
pose of  explaining  the  written  instrument,  but  for  the  purpose 
of  establishing  the  fact,  that  credit  had  been  given  to  Finch, 
upon  the  several  discounts  for  him  on  the  faith  of  the  mort- 
gage. Here  is  a  mortgage,  the  record  of  which  is  notice  to 
all  of  an  incumbrance  to  the  extent  of  $30,000.  The  holder 
of  that  mortgage  may  advance  upon  it  up  to  that  amount, 
and  may  be  secure  in  his  lien  to  the  extent  of  his  advances 
within  that  amount ;  such  having  been  the  agreement  be- 
tween himself  and  the  mortgagor ;  unless  indeed  this  lien 
should  be  affected  by  the  equities  of  subsequent  incum- 
brancers or  grantees,  attaching  previous  to  any  advance." 
So,  when  mortgagees  have  indorsed  bills  in  blank,  and  taken 
the  mortgage  as  an  indemnity,  it  is  not  affected  by  subse- 
quent mortgages,  though  made  before  the  bills  are  put  in 
circulation.^  Thus  a  mortgage  to  indemnify  indorsers  in 
three  bills  of  exchange  for  $4,000  each,  indorsed  in  blank, 
and  delivered  to  the  mortgagor  to  raise  funds  with,  is  valid.2 
Or  a  mortgage  to  indemnify  the  mortgagee  against  future 
indorsements  for  the  mortgagor;  as  against  a  judgment 
recovered  after  such  indorsements.^  And  if  the  mortgage  is 
given  to  secure  one  who  is  bound  to  accepts  drafts  for  the 
mortgagor,  the  lien  attaches  from  their  acceptance  or  nego- 
tiation.4  So  a  mortgage,  to  secure  future  loans  within  a 
limited  amount  and  time,  covers  a  loan  made  within  the 

1  Burdett  v.  Clay,  8  B.  Mon.  287.  *  Choteau    v.    Thompson,    2  Ohio, 

2  Ibid.  N.  S.  114. 
8  Kramer  v.  Bank,  &c.  15  Ohio,  253. 


320  THE    LAW    OP   MORTGAGES.  [CH.    XII. 

time,  although  a  preceding  one  had  been  made  and  repaid.^ 
Though,  on  the  other  hand,  a  mortgage  to  secure  advances 
and  credits,  to  be  made  within  a  time  limited,  secures  none 
made  afterwards ;  ^  nor  will  a  mortgage  secure  advances 
made  after  a  bill  is  filed  by  other  creditors.^  So  in  case  of 
mortgage  to  secure  "  also  what  I  may  owe  him  on  book  " ; 
at  the  making  of  the  mortgage,  there  being  no  subsisting 
account  between  the  parties,  the  condition  was  held  to  ap- 
ply to  future  accruing  accounts.*  So,  where  a  bond  an<;J 
mortgage  were  made  by  an  only  son  to  his  father,  nominally 
to  secure  a  certain  sum  of  money;  and  it  appeared  that  the 
son  was  a  young  man,  just  entering  the  army,  and  that  the 
father  had  lived  more  than  fifteen  years,  and  not  demanded 
or  received  any  interest,  but  during  the  whole  time  main- 
tained the  son  :  held  the  bond  should  be  taken  as  a  run- 
ning security,  and  the  son  charged  only  for  the  amount 
admitted  by  him  to  have  been  received,  in  the  absence  of 
other  evidence.^  (m)     But  where  a  mortgage  was  given  to 

1  Wilson  V.  Eussell,  13  Md.  494.  *  McDaniels   v.    Colvin,   16   Verm. 

2  Miller  v.  Wliittier,  36  Maine,  577.  300. 

3  Seaman  v.  Fleming,  7  Rich.   Eq.  s  Melland  v.  Gray,  2  Y.  &  Coll.  199. 
283. 


(m)  A  statute  of  New  Hampshire  provides,  (in  substance,)  that  a  mortgage 
shall  stand  as  security,  only  for  such  claims  as  are  expressly  stated  therein. 
In  the  ca^e  of  New  Hampshire  Bank  r.  Willard,  10  N.  H.  210,  on  the 
16th  of  August,  1836,  a  mortgage  was  made  by  the  defendant,  conditioned 
to  pay  the  plaintiff  $5,000  on  or  before  August  16,  1838,  on  payment  of 
which  "this  deed,  as  also  a  certain  bond,"  &c.,  "  shall  be  void."  The  condi- 
tion of  the  bond  was  to  pay  to  the  bank  all  discounts  of  the  mortgagor  on 
"notes,  &c.,  made,  &c.,  on  or  before  August  16,  1838,"  or  which  being  now 
made,  &c. ,  shall  before  said  day  be  discounted  by  said  bank  ;  and  indemnify 
the  bank  against  all  damages,  &c.,  arising  therefrom.  At  the  making  of  the 
mortgage,  the  plaintiff's  held  a  note  for  $6,200  signed  by  the  defendant  and 
another,  which  had  been  discounted  for  them.  September  3,  1836,  the  de- 
fendant gave  his  note  to  the  bank  for  $3,100,  being  his  half  of  the  other 
note  ;  and  the  other  maker  also  secured  his  part  of  the  note,  which  was 
given  up.  August  16,  1838,  the  defendant  was  indebted  to  the  plaintiffs 
upon  several  notes  made  subsequent  to  the  mortgage.     Held,  the  mortgage 


CH.   XII.]     ESTATE    OF   THE   MORTGAGEE. — TACKING,   ETC.  321 

indemnify  the  mortgagees  from  all  liabilities  which  thoy  had 
at  any  time  theretofore  contracted,  to  and  for  the  mortgagor 


stood  as  security  for  the  new  note  of  S3, 100,  but  not  for  the  subsequent  notes  • 
the  statutory  provision  against  subsequent  liabilities  applying  as  well  be- 
tween the  mortgagee  and, mortgagor,  as  in  refei'ence  to  third  persons. 

In  Leeds  v.  Cameron,  3   Sumn.  492,  it  was  contended,  that  the  common 
law  had  been  changed  in  New  Hampshire  by  the  following  legislative  pro- 
vision (being  the  same  above  referred  to)  :  — "No  title,  &c.,  shall  be  incum- 
bered by  any  agreement,  unless  such  agreement  or  writing  of  defeasance 
shall   be    inserted  in   the    condition  of  said  conveyance   and  become   part 
thereof,  stating  the  sum  or  sums  of  money  to  be  secured,  or  other  thins  or 
things  to  be  performed."     In   this  case,  the  condition  was  to  pay  "  all  sums 
which  now  are  or  may  be  owing  to,  &c.,  from,  &c.,  on  account  or  otherwise," 
with  interest.     The  mortgage  also  secured  certain  specified  notes.     It  was 
held  by  Story,  J.,  that  such  was  not  the  operation  of  the  act  in  question- 
He  says  (Ibid.  492,  493)  :  —  "If  we  were   to  give  to  these  words  the   re- 
stricted construction  contended  for,  the  statute  would  defeat  all  mortnra"es, 
given  as  indemnity;  —  for  it  could  not  appear  in  certainty  upon  such  mort- 
gages, what  loss  or  injury  the  surety  or  other  person  would  sustain.     So,  if 
a  father  should  receive  from  a  son  a  mortgage  to  provide  suitable  mainte^ 
nance  during  his  life,  the  conveyance  would  be  void ;  no  mortgage  would 
be  good,  given  to  secure  all  debts  due  to  the  mortgagee,  or  indeed  any  debt 
the   amount  of  which  was  not  specifically  ascertained   and   stated.      The 
whole  language  is   perfectly  satisfied,  by  considering  it  to  require  the   na- 
ture and  extent  of  the  claim  to  be  so  far  set  forth,  as  to  leave  no  doubt  as  to 
its  identity ;  to  require  that  all  mortgages  should  be  in  writing,  as  it  would 
enable  creditors  in  all  cases  to  ascertain  whether  an  estate  granted  was  ab- 
solute or  conditional,  and  would  cut  off  many  of  the  temptations  to  create 
secret,  undefined  trusts,  or  fraudulent  and  collusive   securities."      In   the 
same  case,  however,  it  was  further  held,  that  this  statute  avoids  all  mort- 
gages for  the  payment  or  security  of  any  moneys  or  other  things,  which 
were  not  a  matter  of  right  and  positive  obligation  between  the  parties  at 
the  time  of  the  mortgage  ;  and  that  a  mere  provision  for  prospective  advan- 
ces or  accounts,  resting  in  the  discretion  of  the  parties  or  either  of  them, 
could  not  be  thus  secured.      In  Gordon  v.  Graham,  7  Vin.  52  E.  PI.  3  ;  2 
Eq.  Gas.  Abr.  598,  a  mortgage  was  made  to  secure  a  sum  already  lent,  and 
all  sums  which  should  afterwards  be  lent  or  advanced.     The  mortgagor  then 
made  a  second  mortgage,  to  one  having  notice  of  the  first,  and  the  first  mort- 
gagee, having  notice  of  the  second  mortgage,  advanced  a  further  sum.    Lord 
Cowper  decreed,  that  the  second  mortgagee  should  not  redeem,  without 
paying  the  whole  sum  advanced  by  the  first  mortgagee;  saying,  "it  was 


322  THE   LAW   OF    MORTGAGES.  [OH.    XII. 

"  either  as  surety,  indorser,  guarantor,  or  otherwise,  whether 
now  due   or  yet  to  grow  due,  and  from  all  damages,  costs, 


the  folly  of  the  second  mortgagee  with  notice  to  take  such  security."  A 
mortgage  dated  on  the  IStli  of  May  contained  the  following  proviso:  — 
"  Whereas  the  mortgagee  has  indorsed  for  the  mortgagor  a  note  for  SI, 000, 
and  has  agreed  to  indorse  Si, 000  in  a  note  or  notes  hereafter,  when  thereto 
requested,"  if  the  mortgagor  shall  pay  said  notes,  the  deed  to  be  void.  On 
the  16th  of  June,  the  mortgagee  indorsed  a  note  for  the  mortgagor  for  Si, 000, 
and  was  afterwards  compelled  to  pay  it.  in  November,  the  mortgagor  made 
another  mortgage  to  a  bona  fide  creditor,  against  whom  the  former  mortgagee 
brings  a  bill  for  foreclosure.  Held,  the  former  mortgage  was  a  valid  secur- 
ity for  the  second  note.  Hubbard  v.  Savage,  8  Conn.  215.  In  the  case  of 
Crane  v.  Dewing,  7  Conn.  387,  a  mortgage  was  conditioned,  that  if  the 
mortgagor  shall  pay  the  mortgagee  the  sums  to  be  advanced  by  the  latter, 
according  to  an  agreement  mentioned  in  a  certain  bond  of  even  date  from 
the  mortgagor  to  the  mortgagee ;  and  fulfil  every  other  agreement  men- 
tioned in  said  bond,  and  build  the  bridge  therein  mentioned,  and  do  all 
other  things  contained  therein  ;  the  deed  and  bond  to  be  void.  After  a 
second  mortgage  to  another  person,  advances  were  made  by  the  first  mort- 
gagee to  the  mortgagor.  Held,  the  mortgage  should  stand  as  security  for 
such  advances.  IMortgages,  from  parties  in  failing  circumstances,  to  secure 
the  mortgagee  for  certain  liabilities  ;  the  conditions  setting  forth,  that  the 
mortgagee  was  accommodation  indorser  and  signer  for  the  mortgagors  on 
sundry  notes,  drafts,  and  bills  of  theirs  to  the  amount  of  $50,000,  which  were 
then  maturing ;  of  which  they  could  not  give  a  particular  description,  but 
which  it  belonged  to  them  to  pay  and  meet.  When  the  mortgages  were 
made,  it  was  necessary,  for  the  mortgagees'  security,  that  they  should  be 
given  immediately,  and  before  the  notes,  &c.,  could  be  more  accurately  de- 
scribed ;  they  not  being  then  in  possession  of  either  of  the  parties.  Held, 
the  mortgages  were  not  void  for  uncertainty,  but  were  valid  against  subse- 
quent incumbrancers.  Lewis  v.  De  Forest,  20  Conn.  427.  Mortgage  to 
two  partners,  to  secure  a  claim  "  on  book,  for  goods  sold,  &c.,  in  about  the 
sum  of  $5,000,"  as  specified  in  the  deed ;  and  to  another  person  to  secure 
him  as  indorser,  &c.,  to  the  amount  of  $50,000.  The  real  claim  of  the  part- 
ners was  $2,505.85  ;  and  the  indorser's  liabilities  exceeded  $50,000.  The 
latter  received  other  securities  at  the  same  time,  but  not  equal  to  the  amount 
of  his  indorsements.  Held,  the  partners  took  pro  raid,  and  only  in  the  pro- 
portion of  their  real  claim  to  $50,000 ;  and  that  their  claim  was  specified 
with  sufficient  certainty,  as  against  subsequent  incumbrancers.  Ibid.  In 
September,  1846,  the  defendant  took  a  mortgage  to  secure  certain  notes. 
The  mortgagor,  to  secure  a  note  of  S200,  made  a  subsequent  mortgage  to 


CH.  XII.]     ESTATE    OF    THE    MORTGAGEE. TACKING,    ETC.  323 

and  charges  on  account  of  Wie  same  ; "  this  condition  was  iield 
so  vague  and  general  in  its  terms,  that,  as  to  subsequent 
creditors,  it  was  fraudulent  and  void.^ 

1  Youngs  V.  Wilson,  24  Barb.  510.     See  Utley  v.  Smith,  2i  Conn.  'J'JO. 


the  plaintiff,  dated  January  17,  1848,  but  delivered  and  accepted  January 
18th.  Before  the  18th  the  mortgagor  was  not  indebted  to  the  plaiutill',  but 
the  securities  were  given  and  taken  under  an  agreement  tliat  the  plaintilV 
should  open  an  account  with  the  mortgagor,  and  sell  him  goods,  and  that  the 
latter  should  make  payments  which  would  keep  the  amount  due  not  more 
than  S200.  An  account  was  immediately  opened,  and  goods  sold  to  the 
amount  of  S103.  The  account  continued  about  nine  months,  the  balance,  at 
the  closing  of  it,  being  $180,  with  interest,  and  having  never  equalled  S200. 
After  the  second  mortgage,  the  mortgagor  coriveyed  his  equity  of  redemp- 
tion to  the  defendant,  who  gave  up  the  mortgage  notes.  The  plaintilF  brings 
a  bill  to  redeem.  Held,  the  plaintiff's  mortgage  took  effect  from  the  deliv- 
ery ;  that  the  securities  given  to  the  plaintiff,  and  the  sale  of  goods  made  at 
that  time,  constituted  parts  of  one  transaction  ;  that  the  condition  of  that 
mortgage  was  truly  expressed,  and  with  sufficient  certainty ;  that  the  de- 
fendant did  not  stand  as  a  purchaser  for  valuable  consideration,  but  as  a 
mortgagee,  with  the  equity  of  the  mortgagor  in  the  first  mortgage  extin- 
guished, giving  the  plaintiff,  whose  right  was  unimpaired,  a  title  to  redeem  ; 
and  that  the  defendant  had  no  equity  superior  to  that  of  the  plaintiff.  Mix 
V.  Cowles,  20  Uonn.  420.  Mortgage,  conditioned  nominally  upon  the  pay- 
ment of  a  certain  sum,  but  really  to  secure  different  sums  then  due,  proposed 
subsequent  advances,  and  liabilities  to  be  incurred  to  an  uncertain  amount. 
It  appeared  that  there  was  no  fi^aud  in  the  transaction.  Held,  although 
the  incorrect  statement  of  the  true  condition  rendered  the  mortgage  suspi- 
cious, yet,  being  proved  fair,  it  should  stand  as  security  for  all  advances 
made  upon  the  faith  of  it,  as  against  all  persons  who  were  not  injured  and 
deceived  by  the  misrepresentation ;  but  not  for  advances  made  after  notice 
of  a  subsequent  conveyance  by,  or  incumbrance  against,  the  mortgagor. 
Shirras  v.  Caig,  7  Cranch,  34,  50,  51.  A  mortgage  was  made  to  secure  a 
note,  given  by  the  mortgagor  for  the  full  amount  of  a  <lebt  due  the  mort- 
gagee, and  of  the  liability  of  the  latter  for  the  former  as  a  surety.  The 
next  day,  before  any  payment  by  the  mortgagee  as  surety,  the  mortgagor 
assigned  his  property  for  the  benefit  of  creditors.  Held,  the  mortgage  was 
a  valid  security  for  the  debt  due  to  the  mortgagee.  Sanfbrd  r.  Wheeler,  13 
Conn.  165,  Mortgage,  conditioned  to  pay  any  subsequent  account  which 
might  accrue  from  the  mortgagor.  A  second  mortgage  having  been  made 
of  the  same  premises  and  duly  recorded,  held,  the  first  should  stand  as 


324  THE    LAW   OF   MORTGAGES.  [CH.  XII. 

47.  Where  a  mortgage  is  madB  in  part  to  secure  future 
debts,  the  Court  will  not  interfere  in  appropriating  the  pro- 
ceeds of  sale  to  the  prejudice  of  the  mortgagee,  and  in  favor 
of  a  surety  for  the  mortgagor.  Thus,  where  a  mortgage  was 
made  to  secure  payment  of  all  sums  then  owing,  or  after- 
wards to  become  due,  from  the  mortgagor  to  the  mortgagee, 
upon  any  existing  or  future  note,  of  which  the  mortgagor 


security  for  any  balance  which  might  become  due  to  the  mortgagee,  unless 
he  were  expressly  notified  by  the  second  mortgagee  of  his  incumbrance, 
and  that  he  must  make  no  further  advances  upon  the  mortgage.  McDan- 
iels  V.  Colvin,  16  Verm.  300.  In  New  York,  where  a  judgment  maybe  con- 
fessed, as  well  as  a  mortgage  made,  to  secure  future  indebtedness,  it  has 
been  held,  that  the  judgment  shall  take  precedence  of  a  subsequent  mort- 
gage, altliough  the  advances  be  made  by  the  judgment  creditor  after  regis- 
tration of  the  mortgage,  unless  such  creditor  have  actual  notice  of  it.  The 
recording  act  declares,  that  every  conveyance  not  recorded  shall  be  void 
against  any  subsequent  purchaser  in  good  faith  and  for  a  valuable  considera- 
tion, whose  conveyance  shall  be  first  duly  recorded.  (2  Rev.  Sts.  3d  ed. 
40.)  The  record  is  constructive  notice  to  a  subsequent  purchaser,  but  in 
nowise  affects  a  prior  purchaser  or  incumbrancer.  It  is  prospective,  not 
retrospective,  in  its  operation.  Truscott  v.  King,  6  Barb.  346  ;  Stuyvesant 
V.  Hall,  2  Barb.  Cha.  151.  A  second  mortgagee  had  a  judgment  execu- 
tion, and  levy  on  the  land  for  the  mortgage  debt ;  and  it  was  agreed  that 
he  should  hold  the  mortgage  and  judgment  to  secure  him  as  a  surety  on 
certain  notes.  Held,  he  should  thus  hold  them  against  a  subsequent  incum- 
brancer ;  and  that  the  holder  of  the  notes  was  also  entitled  to  the  benefit  of 
the  security  in  the  same  way.  Skillman  o.  Teeple,  Saxt.  232.  In  a  suit  upon 
a  mortgage,  given  to  secure  future  advances  and  acceptances,  the  plaintiff's 
having  produced  certain  drafts  accepted  by  them  ;  held,  that  though  ordi- 
narily the  acceptor  is  presumed  to  have  funds  of  the  drawer  in  his  hands,  so 
that  the  acceptance  is  in  payment,  not  in  creation  of  a  debt,  yet  in  this  case, 
under  the  phraseology  of  the  mortgage,  the  contrary  was  to  be  presumed, 
and  therefore  the  burden  was  on  the  defendant  to  show  that  he  drew  against 
funds,  not  against  an  expectation  of  accommodation  acceptances.  Lewis  v. 
Wayne,  25  Geo.  16  7.  Property  was  conveyed  to  secure  certain  debts,  the 
surplus  on  the  sale  to  go  to  the  grantor.  Afterwards  the  grantees  paid  more 
money  on  the  grantor's  order.  Held,  that  these  payments  were  advances 
of  part  of  the  surplus,  and,  therefore,  that  the  grantee  should  be  allowed 
them,  on  a  bill  to  redecu),  as  much  as  if  he  were  accounting  for  the  surplus 
upon  a  sale.     Williamson  v.  Downs,  34  Miss.  402. 


CH.  XII.]       ESTATE    OF   THE    MOKTGAGEE. TACKING,  ETC.  ail/i 

might  be  drawer  or  indorser;  and  upon  a  sale  of  the  prem- 
ises the  proceeds  were  insufficient  to  pay  a  note,  for  wliiili 
there  was  no  security  but  the  mortgage  :  held,  an  aeconnno- 
dation  indorser,  upon  a  note  discounted  after  the  mortgage, 
could  not  require  an  equal  distribution  of  the  fund  between 
both  notes.  The  Court  say  :  —  "To  this  mortgage,  Stans- 
bury  and  the  Union  Bank  alone  were  parties.  Under  it,  at 
law,  no  right  was  acquired,  no  interest  passed ;  upon  it  no 
action  could  be  maintained  but  by  the  bank.  The  object  of 
its  execution  was,  not  to  indemnify  drawers  or  indorsers,  but 
to  insure  to  the  Union  Bank  the  payment  of  all  notes  nego- 
tiated by  them.  'Tis  true,  if  the  fund  had  been  suthcient, 
those  who  were  on  his  paper  would,  in  equity,  be  protected 
from  loss.  But  this  was  a  consequence,  not  the  design  of 
his  act.  The  attempt  to  sustain  the  claim  of  the  appellee  by 
the  doctrine,  of  substitution  is  equally  untenable.  Such  re- 
lief is  never  extended  to  a  security,  but  upon  the  assumption 
that  the  creditor's  debt  has  been  or  is  to  be  fully  paid ;  that 
his  further  detention  of  the  mortgaged  property  is  against 
equity  and  good  conscience."  ^ 

48.  Where  a  mortgage  was  conditioned  to  pay  "  the  sev- 
eral sums  of  money  which  he  may,  from  time  to  time,  owe, 
at  the  times  appointed,  &c.,  according  to  the  terms  and  con- 
ditions of  an  article  of  agreement,"  &c.,  which  agreement 
was  not  recorded ;  held,  as  the  mortgage  referred  to  the  agree- 
ment, it  was  not  necessary,  as  against  a  creditor  who  recov- 
ered a  judgment  while  such  agreement  remained  in  force, 
that  it  should  be  recorded  with  the  mortgage ;  the  reference 
being  sufficient  to  put  him  upon  inquiry.  The  case  does  not 
distinctly  find,  whether  any  part  of  the  goods  referred  to  in 
the  contract  were  furnished  after  the  judgment  was  recovered, 
but  the  Court  remark  :  —  "  He  has  no  equity  against  the 
mortgagee,  as  to  claims  subsisting  when  the  lien  of  his  judg- 
ment attached;"  implying  that  the  whole  debt  was  then 
subsisting.^ 

1  Union  Bank,  &c.  v.  Edwards,  1  Gill  &  J.  346,  3(53,  3G4,  365. 

2  Garber  ;;.  Henry,  6  Watts,  57-59. 
YOL.   I.  28 


326  THE    LAW   OF   MORTGAGES.  [CH.  XII.        < 

49.  Where  one  of  several  partners  mortgages  his  separate 
property  for  future  advances,  to  be  made  to  the  firm,  to  a 
certain  amount ;  the  mortgage  security  will  terminate  at  the 
death  of  any  one  of  the  partners,  as  to  any  advances  not 
then  made,  unless  the  guaranty  be  clearly  intended  to  be  a 
continuing  one.^ 

50.  The  rights  of  a  subsequent  mortgagee  cannot  be  prej- 
udiced by  any  enlargement  of  the  liability  of  the  mortgagor 
to  the  first  mortgagee,  growing  out  of  the  further  relation 
between  them  of  lessor  and  lessee.  Thus  the  defendant 
purchased  land  subject  to  certain  leases,  and  to  secure  the 
price  gave  the  plaintiffs  three  bonds,  payable  without  inter- 
est, with  a  mortgage  of  the  land,  and  also  a  bond  with  inter- 
est ;  for  non-payment  of  which  interest  the  plaintiffs  bring 
this  bill  to  foreclose.  It  was  agreed  in  writing,  at  the  time 
of  purchase,  that  the  plaintiffs  should  receive  the  rents  on  the 
leases  instead  of  interest  upon  the  three  bonds,  the  leases 
terminating  at  the  times  of  payment  of  the  bonds.  The  de- 
fendant made  a  subsequent  mortgage,  the  second  mortgagee 
having  no  notice  of  the  leases,  or  of  the  arrangement  between 
the  plaintiffs  and  defendant,  above  referred  to.  Neither  the 
leases,  nor  any  assignment  of  them,  nor  the  agreement  as  to 
the  rents,  were  on  record.  The  lessees  continued  to  occupy 
and  pay  rent  to  the  plaintiffs,  till  they  surrendered  the  leases 
to  the  defendant,  without  notice  to  the  plaintiffs,  and  the 
defendant  paid  rent  to  the  plaintiffs,  till  a  short  time  before 
the  suit.  The  second  mortgagee,  until  recently,  knew  noth- 
ing of  the  leases,  or  their  surrender.  Upon  a  foreclosure  and 
sale  of  the  premises,  held,  the  plaintiffs  could  not  be  allowed 
to  enlarge  their  demand  beyond  what  it  appeared  upon  the' 
record,  by  receiving  interest  upon  these  bonds,  in  consequence 
of  the  arrangement  as  to  rents.  The  Court  say :  — "  The 
bank  is  not  chargeable  with  notice  of  the  leases,  or  of  the 
;iij;reement  of  the  mortgagor  to  apply  the  rents  to  the  plain- 
tiffs as  a  substitute  for  interest.     It  is  the  policy  of  the  regis- 

1  Bank,  &c.,  v.  Christie,  8  CI.  &  Fin.  214. 


CH.  XII.]      ESTATE   OP   THE   MORTGAGEE. — TACKING,  ETC.  327 

try  act,  that  a  subsequent  incumbrancer  should  be  able  to 
ascertain  with  certainty  the  extent  of  the  prior  incumbrance  • 
and  if  moneys  not  mentioned  in  the  bond  or  mortgage  can 
be  covered  by  them,  when  the  rights  of  a  subsequent  inort-" 
gagee  are  interposed,  and  to  whom  no  fraud  or  negligence*  is 
to  be  imputed,  it  would  go  to  weaken  very  essentially  the 
value  of  mortgage  security."  ^ 

51.  A  mortgage  was  made  to  the  factor  of  the  mortgagor, 
to  secure  an  existing  debt,  also  future  advances  to  a  certain 
amount.  The  mortgagee  advanced  beyond  that  sum ;  and 
the  principal  made  consignments  to  him,  the  proceeds  of 
which  were  credited  in  general  account.  Held,  they  should 
be  first  applied  to  that  portion  of  the  mortgagee's  claim 
which  was  unsecured.^ 

1  St.  Andrew's  Church  v.  Tompkins,  7  Johns.  Ch.  14,  16, 
^  Johnson's,  &c.  37  Penn.  268. 


328  THE   LAW    OF   MORTGAGES.  [ciI.  XIII. 


CHAPTER  XIII. 

ESTATE     OF     THE     MORTGAGEE.  —  CONCURRENT     OR     SUCCESSIVE 

MORTGAGES    OF    THE     SAME    PROPERTY. RIGHTS     OF    PARTIES 

COLLATERALLY    INTERESTED    IN    THE    MORTGAGED    ESTATE. 

1.  Concurrent  mortgages.  |  ble  for  debts  secured   by   mortgage; 


2.  Land  subject  to  mortgages  may 
be  further  mortgaged.  General  rights 
of  subsequent  mortgagees  ;  when  they 
become  entitled  to  priority,  &c. 

23.  Equitable  application  of  estates 
subject  to  successive  mortgages. 

30.  Rights  of  parties  collaterally  lia- 


sureties ;  subsequent  mortgagees. 

41.  Mortgages  of  indemnity  to  sure- 
ties, &c. 

68.  Transfer  of  different  estates,  sub- 
ject to  one  mortgage.  Equitable  ap- 
portionment of  the  mortgage  debt. 


1.  Different  mortgages  of  the  same  land  may  be  made 
at  one  time ;  and,  in  general,  it  seems,  unless  affected  by 
priority  of  registry,  would  give  equal  and  concurrent  rights 
to  the  respective  mortgagees.  If  bearing  the  ^ame  date,  and 
acknowledged  at  the  same  time,  with  a  general  agreement 
that  one  shall  have  priority  of  the  other ;  the  former  is  pre- 
sumed to  have  been  first  delivered.^  But  in  a,  late  case  it  is 
held,  that  a  mortgage  for  the  purchase-money  takes  precedence 
of  another  mortgage  executed  at  the  same  time,  though  both 
are  entered  for  record  at  once.  The  former  mortgage  is  re- 
garded as  part  of  one  transaction  with  the  deed,  giving  the 
mortgagor  only  an  instantaneous  seisin.  And  this  construc- 
tion is  conformable  to  the  presumed  intention  of  all  the  sev- 
eral parties.'-^  (a) 

1  Jones  I'.  Phelps,  2  Barb.  Ch.  440.      Allen,  391;  Van  Eensselaer   v.  Staf- 
^  Clark    V.   Brown,   3    Allen,   500.     ford,  Hopk.  569.     See  Ch.  1,  8,  1,  and 
See  New  England,  &c.,  v.  Merriam,  2    n. ;  4  Paige,  204 ;  23  Penn.  186. 


{(i)  The  assignment  of  one  of  two  mortgages,  which  were  made  by  the 
same  person  at  the  same  time,  gives  precedence  to  the  one  assigned,  even 


CH.  XIII.]  SUCCESSIVE   MORTGAGES,   ETC.  829 

2.  A  mortgagor  may  mortgage  his  equity  of  redemption, 
or,  as  it  is  commonly  expressed,  make  a  secojid  mortgage 
of  the   land,  (b)      "  Though    mortgages   are  made,  succes- 


as  against  a  subsequent  assignee  of  the  other.     Van  Rensselaer  v.  Staflbrd 
Hopk.  569. 

Where  there  are  two  mortgages  to  secure  the  same  debt,  the  decree  for 
foreclosure  must  order,  that  the  parcel  first  mortgaged  be  sold  first.  And 
then  the  owner  of  the  second  parcel  can  stop  proceedings,  or,  after  a  sale  of 
his  parcel,  can  redeem  it,  by  paying  what  is  due  beyond  the  proceeds  of  the 
first  sale.     Raun  v.  Reynolds,  11  Cal.  14. 

(b)  See  Kilborn  v.  Robbins,  4  Allen,  369.  A  mortgagee  takes,  subject  to 
prior  judgment  liens  ;  but  they  do  not  afi'ect  the  validity  of  the  mortgage. 
Fitzgerald  v.  Beebe,  2  Eng.  311.  Where  a  mortgage  and  judgment  are 
entered  of  record  the  same  day,  with  nothing  to  show  which  was  first  re- 
corded, they  are  payable  pro  rata.  Hendrickson's,  &c.,  24  Penn.  363 ; 
Claason's,  &c.,  22  Ibid.  359.  The  mortgagee  may  legally  purchase  a  judg- 
ment. Walthall  V.  Rines,  34  Ala.  91.  See  Taylor  v.  Maris,  5  Rawle,  51. 
Land,  subject  to  the  lien  of  an  execution,  may  be  mortgaged;  and  the  mort- 
gagor cannot  interfere  with  the  mortgagee's  title,  by  ordering  a  sale  of  more 
than  enough  to  satisfy  the  execution.  Addison  v.  Crow,  5  Dana,  279.  Con- 
veyance, with  warranty,  of  land  subject  to  three  mortgages,  and  also  to  a 
judgment  prior  to  the  first,  of  which  the  grantee  had  no  notice.  Upon  this 
judgment  an  execution  was  issued,  the  land  sold  under  jt,  and  purchased  by 
the  plaintiff",  and  afterwards  from  him  by  the  grantee.  Held,  the  latter  took 
the  land  discharged  of  the  third  mortgage.  McCammon  v.  Worrall,  11 
Paige,  99.  Where  a  judgment  is  docketed  against  a  mortgagor,  between 
the  time  of  giving  the  mortgage  and  its  foreclosure  by  advertisement,  and  a 
fi.  fa.  issues  after  foreclosure,  upon  which  the  land  is  sold,  and  the  pur- 
chaser tenders  to  the  purchaser  under  the  mortgage  sale  the  amount  of  the 
mortgage,  with  the  costs  of  foreclosure  ;  the  former  cannot  maintain  eject- 
ment against  tenants  of  the  latter.  Post  v.  Arnot,  2  Denio,  344.  Land 
being  subject  to  two  mortgages,  a  person  advanced  money  to  the  mortgagor 
to  pay  the  second,  which  was  discharged,  and  the  lender  took  a  new  mort- 
gage, the  premises  being  then  subject  to  a  judgment  against  the  mortgagor, 
who  had  concealed  the  fact  from  the  lender.  Upon  a  bill  to  foreclose  the 
first  mortgage,  the  premises  were  sold.  Held,  that  the  surplus,  after  paying 
the  first  mortgage,  should  be  applied  to  the  last,  the  judgment  creditors  hav- 
ing neglected  to  present  their  claim.  Burchard  v.  Phillips,  11  Paige,  66. 
In  New  York,  a  mortgage  for  purchase-money  has  priority  of  a  judguient 
against  the  mortgagor,  whether  prior  or  subsequent  to  such  mortgage.  Fre- 
linghuysen  v.  Colden,  4  Paige,  204.  Land  on  which  was  a  mortgage  for  the 
28* 


330  THE   LAW   OF   MORTGAGES.  [CH.  XIII. 

sively,  upon  the  same  property,  they  are    still  regarded  as 
mortgages."  ^    So  a  mortgage  may  be  made  contingent  upon 

1  Per  Gholson,  J.,  Justice  v.  Uhl,  10  Ohio  St.  176. 


purchase-money  "was  sold  for  taxes,  and  A.,  the  purchaser,  gave  his  bond  to 
the  treasurer,  for  the  use  of  the  last  owner  of  the  lot,  for  the  surjjlus  over 
the  amount  due  for  taxes.  B.  had  obtained  a  judgment  against  the  owner- 
of  the  land,  and  summoned  A.  as  his  garnishee.  Held,  the  owner  of  the 
mortgage  was  entitled  to  the  surplus  under  the  Act  of  April  14,  1840,  and 
that  A.  was  bound  to  defend  the  interest  of  the  mortgagee.  Kelso  v.  Kelly, 
14  Penn.  204.  A  mortgagee  was  compelled,  for  his  own  security,  to  satisfy 
a  prior  judgment  against  the  mortgagor.  Upon  a  sale  of  the  property,  held, 
he  should  receive  from  the  proceeds  the  amount  of  the  judgment,  as  well  as 
the  mortgage.  Silver,  &c.  v.  North,  4  Johns.  Ch.  370.  Land  being  subject 
to  a  mortgage  and  judgment,  the  owner  of  a  part  of  it  sold  such  part  to  the 
owner  of  the  residue,  "under  and  subject  to  the  payment  of  the  judgment 
and  liens  thereon,'"  and  took  a  mortgage  back.  The  whole  land  was  after- 
wards sold  on  execution  against  the  vendee.  Held,  the  vendor's  mortgage 
should  be  paid  from  the  proceeds  of  the  whole  lot,  next  after  the  first  mort- 
gage and  judgment,  in  preference  to  the  judgments  against  the  vendee. 
Devor,  1  Harr.  (Penn.)  413.  Where  a  mortgagee,  whose  mortgage  is  the 
first  lien  on  an  estate,  buys  the  same  at  a  sale  under  a  junior  judgment, 
■without  any  expresg  stipulation  between  him  and  the  sheriff;  he  stands  like 
all  other  purchasers,  and  cannot  requii-e  a  deed  from  the  sheriff,  on  credit- 
ing the  amount  of  his  bill  in  satisfaction  of  his  mortgage.  Crawford  v. 
Boyer,  14  Penn.  380.  Mortgaged  premises  were  sold  under  a  judgment 
subsequent  to  the  mortgage,  which  was  afterwards  foreclosed,  and  the  mort- 
gage debt  paid  by  the  purchaser  at  sheriff's  sale.  Held,  such  purchaser 
should  be  protected  against  the  purchaser  under  the  mortgage,  having  notice 
of  the  sheriff's  sale  before  his  purchase  was  complete.  Seymour  v.  Preston, 
Spears,  Ch.  481. 

A  court  of  equity,  where  the  case  justifies  it,  may  order  a  judgment  to  be 
paid  out  of  mortgaged  real  estate,  and  direct  the  judgment  to  be  assigned  to 
the  mortgagee,  or  direct  the  assignment  to  be  made,  if  the  mortgagee  pays 
the  claim  out  of  his  own  funds.     Watson  v.  Bane,  7  Md.  117. 

Where  there  is  the  lien  of  a  judgment,  not  sustained  by  levy  within  the 
year  after  the  rendition  of  the  judgment,  but  older  than  the  lien  of  a  mort- 
gage, the  mortgagee  cannot  protect  himself  against  the  prior  judgment  lien, 
by  the  purchase  of  a  junior  judgment  levied  within  the  year.  Fitch  v.  Men- 
denhall,  17  Ohio,  578. 

If  the  assignee  of  an  equity  of  redemption  acquires  a  title  obtained  under 


CH.  XIII.]  SUCCESSIVE   MORTGAGES,   ETC.  331 

the  insufficiency  of  another  mortgage.^  So,  where  a  third 
person  took  timber  from  land  under  mortgage,  with  the  cdh- 
sent  of  the  mortgagor  and  mortgagee,  and  with  tlie  eoinnion 
understanding   that   the   avails    should    be   appropriated  to 

1  Trenchard  v.  Warner,  18  111.  142. 


a  judgment  prior  to  the  mortgage,  and  the  mortgagor  refunds  to  him  the 
sum  paid  for  the  judgment,  the  title  acquired  under  the  judgment  will  be 
subordinate  to  the  mortgage.  White  v.  Butler,  13  111.  109.  In  equity,  such 
title  -will  be  treated  as  if  obtained  by  and  in  the  name  of  the  mort^afjor.  lb. 
If  the  mortgagor,  or  a  purchaser  from  him,  pays  off  the  mortgage,  and  it  is 
discharged,  there  being  a  subsequent  judgment  on  the  premises,  under  which 
they  are  sold ;  the  purchaser  at  the  latter  sale  will  take  the  premises  dis- 
charged of  the  mortgage,  and  equity  will  not  relieve  the  vendee  of  the  mort- 
gagor, there  being  no  mistake  of  fact,  fraud,  or  accident.  Garwood  i-.  EI- 
dridge,  1  Green,  Ch.  145. 

Funds  of  a  debtor,  which  arise  from  a  sheriff's  sale  of  property  not  mort- 
gaged, cannot  be  applied,  even  with  the  debtor's  consent,  to  mortgages,  as 
against  other  judgments.     Byass  v.  Bancroft,  22  Geo.  34. 

A  mortgage  takes  effect  on  delivery  to  the  recorder  for  record.  It  has  no 
effect  as  against  judgment  creditors  of  the  mortgagor  till  such  delivery. 
After  delivery,  the  lien  of  such  judgments  only  attaches  to  the  equity  of 
redemption,  and  the  judgment  creditor  is  in  no  better  position  than  the 
mortgagor.     Tousley  v.  Tousley,  5  Ohio,  (N.  S.)  78. 

A  mortgage  given  for  the  residue  of  the  purchase-money,  of  the  same  date 
with  the  conveyance,  duly  recorded,  has  priority  over  judgments  against  the 
holder  of  the  equitable  interest  anterior  to  the  conveyance;  and  a  sale  upon 
a  judgment  entered  subsequently  to  the  mortgage  does  not  divest  its  lien. 
Cake's  Appeal,  23  Penn.  186. 

A  mortgage  in  common  form,  to  secure  payment  of  a  bond  for  a  sum  cer- 
tain, which  bond  is  in  fact  given  in  consideration  of  a  promise  by  the  obligee 
toa<lvance  a  similar  sum,  for  the  purpose  of  building  on  the  mortgaged  land, 
and  in  certain  proportions  to  the  progress  of  the  buildings;  has  priority  over 
mechanics'  liens  recorded  subsequently  to  the  mortgage,  although  before  the 
advances  were  all  made.     Moroney's  Appeal,  24  Penn.  372. 

The  assignee  of  a  first  mortgage  may  maintain  a  bill  in  equity,  to  restrain 
the  prosecution  of  a  writ  of  entry  against  him  in  a  lower  court,  brought  for 
the  foreclosure  of  a  subsequent  mortgage,  which  mortgage  includes  another 
lot  now  owned  by  the  assignee  of  the  second  mortgage,  and  liable  to  con- 
tribute to  the  mortgage  debt.  Kilborn  u.  Robbins,  4  Allen,  369.  See,  fur- 
ther, Kelly  V.  Perseverance,  &c.,  39  Penn.  148;  Hahn's,  &c..  Ibid.  409. 


332  THE   LAW    OF   MORTGAGES.  [CH.  XIII. 

the  mortgage  ;  held,  they  must  be  so  appropriated,  a  prior 
mortgagee  making  no  claim.^ 

2  a.  And  the  right  of  redeeming  any  number  of  succes- 
sive mortgages  may  be  mortgaged  anew.  More  numerous 
and  complicated  questions  in  the  law  of  mortgages  prob- 
ably arise  from  this  source  than  from  any  other.  The  gen- 
eral principle  is,  that  mortgages  duly  recorded  have  prefer- 
ence according  to  the  order  in  which  they  were  made ;  (c) 
that  a  second  mortgagee  stands  in  the  place  of  the  mort- 
gagor, as  to  his  right  of  redeeming  the  first  mortgage ;  and 
so,  in  reference  to  further  mortgages  of  the  same  property, 
each  new  mortgagee  succeeds  to  the  rights  of  his  mort- 
gagor. A  mortgage  being  only  a  pledge,  a  subsequent 
mortgagee  may  elect,  either  to  foreclose  and  bring  an  action* 
against  the  mortgagor,  or  to  redeem  the  prior  mortgage.^  If 
he  join  the  first  mortgagee  as  party  defendant,  in  a  suit  to 
foreclose,  he  may  have  a  decree  of  account  and  redemption 
of  the  first  mortgage.^  So,  where  a  mortgagee  is  in  posses- 
sion for  the  purpose  of  foreclosure,  and  also  owns  the  equity 
of  redemption,  a  second  mortgagee  may  bring  an  action 
against  him  for  foreclosure ;  and  under  his  execution  may  be 
put  in  temporary  possession  without  an  actual  ouster  of  the 
defendant.  And  it  seems  a  special  form  of  judgment  will  be 
entered  to  preclude  such  ouster.*  It  is  said,  a  second  mort- 
gagee has  full  power,  by  paying  off  the  first  mortgage  and 
taking  the  entire  control  of  the  mortgaged  premises,  as 
against  the  mortgagor,  to  protect  himself  against  any  appre- 
hended injury  from  the  neglect  of  the  first  mortgagee  to  take 
and  continue  actual  possession,  so  as  to  render  the  income 

1  Howe  V.  Russt41,  86  Maine,  115.  ■^  Farwell  v.  Murphy,  2   Wis.   533  ; 

2  Savage  v.  Dooley,  28  Conn.  411  ;     Blake  v.  Williams,  36  N.  H.  39. 
Norton  v.  Warner,  3  Edw.  106.  *  Cronin  v.  Hazletine,  3  Allen,  324. 


(c)  So  where  an  estate  is  purchased  free  from  incumbrance,  and  the  pur- 
chaser takes  possession  without  payment;  the  purchase-money  is  considered 
as  applied,  so  far  as  it  will  go,  in  payment  of  the  incumbrances  according  to 
priority.  Coote,  483  ;  Greenwood  v.  Taylor,  14  Sim.  505  ;  Smith  v.  Smith, 
9  Beav.  80.     See  Mackenzie  v.  Gordon,  G  CI.  &  Fin.  875. 


CH.  XIII.]  SUCCESSIVE   MORTGAGES,    ETC.  333 

of  the  premises  available  towards  the  discharge  of  tlu'  debt 
secured  by  the  first  mortgage.  This  would  effectually  secure 
him  against  any  collusion  between  the  first  mortgagee  and 
the  mortgagor,  ^(d)  So  a  second  mortgagee,  paying  the  first 
for  his  own  security,  succeeds  to  his  title,  whether  all  or  only 
a  part  of  the  mortgagors  are  personally  bound  for' the  del)t,2 
So  it  is  said,  a  second  mortgagee  of  two  estates,  subject  to 
prior  distinct  mortgages,  may  redeem  either  of  them,  and 
then  foreclose  as  to  that  particular  estate  ;  and  if  he  sue  to 
redeem  both  the  prior  mortgages,  he  may  have  a  decree  to 
redeem  both  or  either  of  them,  and  to  foreclose  the  mortgagor 
accordingly.^  So,  where  B.  executed  to  A.,  at  different 
times,  two  mortgages  of  separate  parcels  of  land,  to  secure 
distinct  debts  ;  on  a  bill  of  foreclosure,  brought  by  A.  against 
B.  and  subsequent  incumbrancers,  held,  A.  was  not  entitled 
to  a  decree,  foreclosing  such  subsequent  incumbrancers  of  all 
right  to  redeem  either  mortgage,  upon  failure  to  pay  both, 
but  that  they  were  entitled  to  redeem  one  of  such  mortgages, 
without  the  other.*  (e) 

1  Per  Dewey,  J.     Charles  v.  Dun-        ^  Weld  v.  Sabin,  20  N.  11.  533. 
bar,  4  Met.  502.     See  Pomeroj-  v.  La-        ^  Coote,  470. 
thing,  3  Allen,  221.  *  Frink  v.  Branch,  IG  Conn.  260. 


(d)  A  subsequent  mortga,2ee  sought  to  set  aside  a  purchase  under  a  de- 
cretal sale  in  favor  of  a  prior  mortgagee,  at  which  the  latter  had  become  the 
purchaser.  The  Court  of  Appeals  allowed  him  to  redeem  upon  terms;  but, 
he  having  delayed  to  do  so,  the  Chancellor  afterwards  refused  to  quju-^h  the 
sale  and  allow  him  to  redeem.  Held,  on  account  of  the  delay  and  a  subse- 
quent compromise  and  pending  litigation  between  the  parties,  the  refusal 
•was  proper.  Dale  v.  Shirley,  8  B.  Mon.  524.  In  Alabama,  a  second  mort- 
gagee may  either  pay  the  first  mortgage,  and  then  file  a  bill  to  have  a  sale 
for  payment  of  both  mortgages,  or  he  may  file  a  bill  for  foreclosure  without 
payment,  making  all  necessary  parties,  and  have  a  decree  for  sale  to  pay 
both.  Cullum  v.  Erwin,  4  Ala.  N.  S.  452  ;  Chambers  v.  Mauldin,  Ibid.  477. 
In  Michigan,  a  subsequent  mortgagee  may  redeem,  where  the  premises  are 
sold  upon  a  prior  mortgage  under  the  statute.  Kimmell  v.  Willard,  1  Doug. 
217. 

(e)  Where  two  successive  deeds  of  trust  are  made  to  one  trustee  of  the 
same  property,  but  for  different  cestuis,  and  the  trustee  sells  under  the  latter 


334  THE   LAW    OF   MORTGAGES.  [CH.   XIII. 

3.  Where  a  mortgagee  has  been  compelled  to  pay  an  ex- 
isting incumbrance,  as  well  on  the  lands  mortgaged  to  him 
as  on  other  lands,  the  owner  of  such  other  lands  will  be  de- 
creed to  pay  him  his  proportion  of  such  incumbrance.^ 

4.  A  mortgage  was  made  to  secure  a  void  claim,  and  a 
subsequent  mortgage,  to  another  person,  to  secure  a  just 
debt ;  and  the  assignee  of  the  right  to  redeem  paid  the  first 
mortgage.  Held,  the  last  mortgagee  could  not  recover  of  the 
first  the  money  so  paid.^ 

5.  In  England,  upon  the  principle  of  tacking^  to  which 
reference  has  been  already  made,  [supra,  ch.  12,)  a  third 
mortgagee  may  gain  priority  over  a  second  mortgagee,  by 
buying  up  the  first  mortgage  and  tacking  it  to  his  own, 
thereby  obliging  the  second  mortgagee  to  redeem  both  in 
order  to  redeem  one. 

6.  A  second  mortgagee  succeeds  to  all  the  rights  of  the 
mortgagor,  arising  out  of  any  special  agreement  between  the 
mortgagor  and  the  first  mortgagee  in  relation  to  the  land. 
Thus,  if  the  mortgagor  leased  to  the  first  mortgagee,  who 
covenanted  to  pay  rent,  but  refuses  to  pay  it  to  the  second 
mortgagee  upon  demand,  not  having  paid  it  to  the  mort- 
gagor ;  upon  redemption  of  the  first  mortgage  by  the  second 
mortgagee,  the  first  mortgagee  must  account  tor  the  profits 
towards  the  payment  of  his  claim.^  While,  on  the  other 
hand,  as  will  be  more  fully  explained  hereafter,  (see  Parties,) 
a  second  mortgagee  is  not  bound  by  proceedings  between 
the  first  mortgagee  and  the  mortgagor,  to  which  he  was 
not  party. 

7.  By  agreement  of  parties  a  subsequent  mortgage  may 
take  precedence  of  a  prior  one.  Thus,  by  an  express  statute, 
the  State  Bank  was  prohibited  from  taking  a  mortgage  of 

'  Lyman  v.  Little,  15  Verm.  576.  '^  Newall  v.  Wright,  3  Mass.  138. 

-  Ellsworth  V.  Mitchell,  31  Maine,  247. 


one;  the  grantor's  equity  of  redemption  passes,  and,  upon  a  bill  to  enforce 
the  prior  lien,  the  purchaser's  title  cannot  properly  be  declared  void.  Gra- 
ham V.  King,  15  Ala.  563. 


CH.  XIII.]  SUCCESSIVE    MORTGAGES,    ETC.  3.35 

property  already  incumbered,  to  secure  a  loan ;  but  the  bank 
took  a  second  mortgage,  under  a  valid  agreement  between 
all  parties,  that  it  should  have  precedence  of  the  first.  Held 
this  agreement  was  binding  on  the  mortgagor,  and  an  exe- 
cution purchaser  of  the  equity  took,  subject  to  both  incum- 
brances.' (/) 

8.  Where  a  prior  incumbrancer  contracts  for  a  purchase  of 
the  land  in  discharge  of  his  debt,  and  assumes  the  payment 
of  a  subsequent  mortgage  as  part  of  the  consideration  ;  such 
purchase  will  operate  as  an  extinguishment  of  his  mortgage, 
and  give  priority  to  the  subsequent  mortgagee.  Thus  in  the 
case  of  Brown  v.  Stead,^  after  two  mortgages,  the  mortgagor 
charged  the  land  with  another  debt  to  the  first  mortgagee. 
He  afterwards  entered  into  an  indenture  with  the  second 
mortgagee,  setting  forth  that  the  latter  had  agreed  for  an 
absolute  purchase  of  the  land  for  a  certain  sum,  being  the 
amount  of  all  the  debts,  from  which  he  was  to  pay  a  certain 
part  to  the  first  mortgagee^  and  retain  the  balance  in  satisfac- 
tion of  his  debt.  In  consideration  of  the  sum  named,  being 
the  amount  of  the  first  mortgagee's  two  claims,  the  payment 
of  which  the  second  mortgagee  assumed,  and  of  the  second 

I  State  Bank  (•.  Campbell,  2  Rich.  Eq.  (S.  C.)  179.     See  Dutton  i-.  Ives,  5 
Mich.  515. 
^  5  Sim.  535. 


(/)  An  act  of  parliament  empowered  a  company  to  construct  certain 
works,  and  to  raise  money  by  mortgajiing  them,  —  the  mortgages  and  trans- 
fers to  be  void  unless  indorsed  by  the  clerk.  Mortgages  were  made,  but  not 
thus  indorsed.  Interest  falling  due,  the  company  borrowed  money  on  mort- 
gage of  commissioners,  it  being  agreed  between  all  parties,  that  the  later 
mortgage  should  have  priority.  The  commissioners,  upon  non-payment, 
entered  and  took  the  tolls,  and,  under  an  act,  empowering  them  to  sell  prop- 
erty mortgaged  to  them  for  non-payment  of  interest,  sold  to  a  ivnlway  com- 
pany, having  notice  of  the  informality  of  the  first  mortgage,  which  subse- 
quently recognized  the  validity  of  such  mortgage.  In  a  suit  by  parties 
claiming  under  the  original  mortgagee,  it  was  held  tliat  the  sale  was  invalid, 
and  the  railway  company  was  bound  to  account  for  the  tolls.  Jortin  r. 
South  Eastern,  &c.,  31  Eng.  L.  &  Eq.  320. 


336  THE    LAAY   OF   MORTGAGES.  [CH.    XIII. 

mortgagee's  own  debt,  the  mortgagor  conveyed  the  equity  of 
redemption,  subject  to  the  claims  of  the  first  mortgagee,  to 
the  second  mortgagee,  and  the  latter  covenanted  to  pay  the 
former.  Held,  the  second  mortgagee's  claim  was  hereby 
extinguished,  and  the  first  mortgagee  need  not  pay  it  in 
order  to  maintain  a  bill  for  foreclosure  upon  both  his  incum- 
brances, (g) 

9.  If  an  agreement  is  entered  into  between  a  mortgagor 
and  two  successive  mortgagees,  that  the  first  mortgagee  shall 
take  other  security  and  release  his  mortgage,  and  the  second 
mortgagee  takes  the  land  in  satisfaction  of  his  claim,  accord- 
ing to  an  appraisal,  which  is  actually  made  ;  the  first  mort- 
gagee cannot  maintain  a  bill  to  foreclose  his  mortgage, 
though  the  mortgagor  has  not  wholly  fulfilled  his  part  of  the 
agreement.^  But  unless  the  second  mortgagee  file  a  cross- 
bill for  relief,  he  must  be  dismissed  from  the  case,  with  costs, 
and  a  decree  of  foreclosure  made  against  the  mortgagor 
alone.^ 

10.  In  the  case  of  Irwin  v.  Tabb,^  it  was  held,  that,  where  a 
mortgage  is  made  to  several  persons,  to  secure  several  debts, 
but  giving  a  partial  priority  to  some  over  others ;  they  are  to 
be  treated,  in  reference  to  their  respective  claims  upon  the 
property,  as  parties  to  one  deed,  with  full  notice,  and  not  as 
prior  and  subsequent  mortgagees.  The  facts  of  the  case 
were,  that  a  mortgage  was  made  to  three  several  creditors  of 
the  mortgagor",  to  secure  preexisting  debts.     The  mortgagees 

1  Simonds  v.  Brown,  18  Verm.  231.  »  17  S.  &  R.  419. 

2  Ibid. 


(gr)  F.  .sold  land  to  C,  and  took  a  bond  and  mortgage  from  C.  and  M.  to 
secure  payment ;  C.  afterwards  sold  to  M.  and  took  a  mortgage  back  ;  F. 
obtained  a  judgment  on  the  bond  against  C.  and  M.,  and  levied  on  the  per- 
sonal property  of  M.,  but  the  execution  was  Jiever  returned;  after  the  lapse 
of  two  years,  F.  assigned  the  balance  of  his  judgment  to  T.,  who  procured 
from  M.  a  revival  of  the  judgment,  and  agreed  that  he  would  have  the  exe- 
cution returned,  but  never  did.  Held,  that  such  agreement  did  not  post- 
pone T.'s  claim  under  F.'s  mortgage  to  C's  mortgage.  Cathcart's  Appeal, 
13  Penn.  416. 


CH.  Xlir.]  SUCCESSIVE   MORTGAGES,   ETC.  337 

were  absent  and  had  no  notice  of  the  mortgage.  The  sum 
secured  was  $8,000,  $2,000  to  be  paid  to  the  one  last  named, 
and  $3,000  each  to  the  others.  At  this  time,  the  second  and 
third  had  advanced  the  amount  of  their  respective  claims, 
but  the  first  had  not.  He  afterwards,  however,  made  up  the 
full  amount.  The  property  was  sold  on  execution  under  the 
mortgage,  but  the  proceeds  were  less  than  the  whole  sum 
secured.  Held,  the  mortgagee  last  named  did  not  stand  in 
the  position  of  a  subsequent  incumbrancer,  but  as  having  an 
interest  in  common  with  the  others,  under  the  same  title ; 
that  he  had  neither  done  any  act  nor  relinquished  any  right 
by  reason  of  the  mortgage,  to  his  own  prejudice  ;  that  hav- 
ing affirmed  the  mortgage  in  part,  he  was  bound  by  it  in  the 
whole ;  and  therefore  that  the  proceeds  of  sale  should  be 
distributed  in  the  proportions  mentioned  in  the  deed.  (A) 

11.  Where  a  first  mortgage  described  the  land  as  lot 
eighteen  instead  of  eight ;  and  a  second  mortgage  described 
it  correctly  as  to  the  number,  but  the  second  mortgagee  had 
notice  of  the  mistake  in  the  prior  mortgage  ;  held,  the  prior 
mortgage  should  have  precedence  of  the  other.^ 

12.  Where  a  bill  to  foreclose  was  brought  against  a  de- 
fendant as  second  mortgagee,  and  he  did  not  directly  deny 
the  priority  of  the  plaintiff's  mortgage,  but  merely  stated 
that  his  was  of  the  same  date ;  held,  it  should  be  presumed 
to  be  subsequent  to  the  plaintiff's,  and  was  no  defence.^ 

1  Warburtoii  v.  Lanman,  2  Greene,  420.     -  Holabird  v.  Burr,  17  Conn.  556. 


(K^  On  the  4th  December,  1846,  A.  executed  two  mortgages  on  the  same 
premises  for  the  purchase-money ;  one  to  B.,  payable  in  nine  equal  annual 
instalments  ;  and  the  other  to  C,  for  $8,623,  payable  in  three  annual  instal- 
ments ;  the  first  to  become  due  December  4,  1856.  It  was  agreed  that  the 
mortgage  to  B.  should  be  the  first  lien.  This  mortgage  was  subsequently 
assigned  to  C,  and  foreclosed  under  the  statute.  Upon  the  sale  of  the 
premises,  January  5,  1850,  they  were  struck  oif  to  D.  for  a  sum  larger  than 
the  amount  due  upon  the  mortgage,  and  costs  of  foreclosure.  Held,  C.  was 
entitled  to  have  the  mortgage  for  $8,623  first  satisfied  out  of  the  surplus 
money,  and  A.  only  to  the  balance.     Barber  v.  Gary,  11  Barb.  o40. 

VOL.  I.  29 


338  THE   LAAV    OF   MORTGAGES.  [CH.  XIII. 

13.  A  second  mortgagee,  who  has  taken  a  conveyance 
with  the  title-deeds,  without  notice  of  the  first  mortgage, 
will  not  be  compelled  in  equity  to  deliver  up  the  deeds ;  but 
the  first  mortgagee  will  be  left  to  his  action  of  trover  at  law, 
where  the  right  to  the  deeds  accompanies  the  legal  estate.^ 

14.  The  prior  right  of  a  first  mortgagee  may  be  established, 
in  a  proceeding  instituted  by  a  second  mortgagee,  to  which 
the  former  is  made  a  party  defendant,  although  the  object  of 
it  is  to  foreclose  the  second  mortgage.  Thus  the  assignee 
of  a  second  mortgage  filed  a  bill  of  foreclosure,  making  the 
assignee  of  the  first  mortgage  a  party,  who  in  his  answer 
prayed  for  a  sale  of  the  land  and  priority  of  payment.  Held, 
in  case  of  sale,  he  should  be  first  paid.^ 

15.  A  sale  on  execution  upon  the  debt  secured  by  a  first 
mortgage  may  operate  to  extinguish  all  subseq^uent  mort- 
gages. Thus,  in  case  of  a  mortgage  to  secure  bonds  payable 
in  ten  years,  with  interest  semi-annually,  judgment  was  re- 
covered on  the  bonds  for  interest,  and  a  sale  made  within 
ten  years  to  the  mortgagee,  upon  a  venditioni.  Held,  this 
divested  the  mortgage  and  all  subsequent  mortgages.^ 

16.  In  the  following  case,  however,  no  such  extinguish- 
ment of  subsequent  mortgages  was  held  to  result  from  an 
execution  sale. 

17.  Three  successive  mortgages  of  the  same  land  were 
made  to  three  different  parties.  The  two  first  mortgagees 
entered  on  the  same  day  for  breach  of  condition.  Subse- 
quently, a  creditor  of  the  mortgagor  attached  his  right  of 
redemption,  recovered  judgment  against  him,  and  afterwards 
purchased  the  first  mortgage,  and  took  an  assignment  of  it. 
He  subsequently  bought  the  right  in  equity  at  the  execution 
sale,  and,  a  year  having  expired,  supposing  and  representing 
himself  to  be  absolute  owner  of  the  estate,  made  a  warranty 
deed  of  it.  The  second  mortgagee  tendered  to  the  grantee 
the  sum  due  upon  the  first  mortgage,  protesting  that  he  con- 
sidered  it  as   extinguished,  and    brings  a  bill  in  equity  to 

1  Head  v.  Egerton,  3  P.  Wins.  280 ;        -  Troth  v.  Hunt,  8  Blackf.  580. 
Hooper  v.  Kanisbottoni,  6  Taunt.  12.  »  Clarke  v.  Stanley,  10  Barr,  472. 


CH.  Xltl.]  SUCCESSIVE    MORTGAGES,   ETC.  3^9 

redeem.  Held,  the  execution  purchaser  did  not,  by  buying 
the  equity  of  redemption,  exclude  intervening  incumbrances 
as  by  the  English  law  would  have  been  the  result,"  the  doc- 
trine of  tacking  being  unknown  in  Maine  ;  that  the  execution 
sale  did  not  abridge  the  right  of  the  second  mortgagee  to 
redeem  the  first  mortgage  from  three  years  to  one  year,  this 
provision  applying  exclusively  to  the  relation  between  the 
mortgagor  and  execution  purchaser,  and  not  affecting  the 
claims  of  other  mortgagees,  prior  to  the  attachment,  which 
are  not  liable  to  be  impaired  by  any  dealing  between  the 
mortgagor  and  his  creditors  ;  and  that  the  first  mortgage  was 
not  extinguished,  by  being  united  with  the  equity  of  redemp- 
tion in  the  hands  of  the  execution  purchaser.  Decreed,  that, 
on  payment  of  the  sum  due  on  the  first  mortgage,  the  grantee 
of  the  execution  purchaser  should  surrender  the  land,  and 
convey  and  release  his  right  as  the  assignee  of  such  pur- 
chaser.i 

18.  A  second  mortgagee  may  take  an  assignment  of  the 
first  mortgage,  with  all  the  benefits  incident  thereto.^  But 
to  an  action  by  a  second  mortgagee  for  the  land  against  a 
stranger,  it  is  no  defence,  that,  after  commencement  of  suit, 
he  has  become  assignee  of  the  first  mortgage.-^ 

19.  If  a  second  mortgagee  enter  for  foreclosure,  and  the 
first  mortgagee  afterwards  enter  for  the  like  purpose,  and  if 
the  second  mortgage  is  foreclosed,  such  foreclosure  will  cut 
off  the  equity  of  redemption,  and  all  subsequent  mortgages, 
though  such  mortgages  are  held  by  the  first  mortgagee.'* 

20.  Where  the  first  mortgage  is  paid  by  the  mortgagor,  a 
second  mortgagee  may  file  a  bill  for  an  assignment  of  the 
legal  estate,  though  the  mortgagor  have  tendered  him  the 
amount  of  his  debt,  and  a  decree  been  obtained  for  redemp- 
tion, until  the  time  fixed  for  redemption  has  arrived;  though 
(it  is  said)  he  will  probably  be  thereby  charged  with  costs,  if 
he  were  properly  notified,  six  months  beforehand,  of  the  pro- 
posed tender.^ 

1  Thompson  v.  Chandler,  7  Greenl.  .  *  Pahner  v.  Fowley,  5  Gray  545. 
377.  5  Coote,  476  ;  Grugeou  c.  Gerrard, 

2  Bank,  &c.  v.  Peter,  13  Pet.  123.  4  Y.  &  Coll.  119- 

3  HaU  V.  Bell,  6  Met.  431. 


340  THE    LAW    OF   MORTGAGES.  [CH.   XIII. 

21.  On  a  bill  to  foreclose  by  a  junior  mortgagee,  the  prior 
mortgage  not  being  due,  the  plaintiff  will  be  allowed  to  sell, 
subject  to  the  first  mortgage.^ 

22.  Where  a  second  mortgagee  pays  the  first  mortgagee, 
if  justice  requires  it,  the  law  will  presume  an  assent  by  the 
latter  to  the  use  of  all  securities  in  his  hands,  in  order  to 
compel  payment.  Thus,  certain  premises  being  subject  to 
a  mortgage,  an  attachment,  and  a  second  mortgage  subse- 
quent to  both,  the  first  mortgagee  brings  a  bill  for  foreclosure, 
to  which  the  mortgagor  and  subsequent  mortgagee  are  par- 
ties, and  obtains  a  decree.  The  attaching  creditor  then  re- 
covers judgment,  and  levies  his  execution  upon  the  premises, 
subject  to  the  first  mortgage.  Pending  the  time  limited  by 
the  decree  of  foreclosure,  and  within  six  months  after  the 
levy,  the  second  mortgagee  redeems  the  first  mortgage,  by 
depositing  with  the  clerk  of  the  court  the  amount  of  the 
decree.  Held,  he  was  hereby  subrogated  to  all  the  equitable 
rights  of  the  first  mortgagee,  and  could  hold  the  land  as 
against  the  execution  creditor,  till  reimbursed  the  amount 
paid.^ 

23.  Upon  a  principle  of  equitable  adjustment,  if  the  owner 
of  two  estates  first  mortgages  both  to  the  same  person,  and 
afterwards  one  of  them  to  another  person,  a  court  of  equity 
may  order  the  first  mortgagee  to  satisfy  his  claim  from  the 
estate  not  included  in  the  second  mortgage,  if  sufficient  for 
that  purpose,  in  order  to  make  room  for  the  second  mort- 
gagee.^ So,  upon  a  bill  for  foreclosure,  subsequent  mortga- 
gees may  require  the  plaintiff  to  apply  towards  the  payment 
of  his  debt  collateral  security  in  his  hands,  to  which  they  are 
not  parties.*  (i) 

1  Western,  &c.  i-.  Eagle,  «S;c.,  1  Paige,  ^  Lanoy  v.  Athol,  2  Atk.  446;  Me- 
284.  clianics',  '&c.  v.  Edwards,  1  Barb.  271. 

-  Downer  v.  Fox,  5  Washb.  (Verm.)        *  Pettibone  v.  Stevens,  15  Conn.  19. 
388 ;  ace.  King  v.  McVickar,  3  Sandf. 
Cha.  199. 


(i)  Tile  principle  stated  in  the  text  applies  to  a  judgment  creditor  and 
mortgagee,  as  well  as  two  successive  mortgagees.     But  if  the  mortgagee,  by 


CH.  XIII.]  SUCCESSIVE    MORTGAGES,    ETC.  341 

24.  But  the  important  condition  is  attached  to  this  general 
rule  of  equity,  that  its  application  "  will  not  prejudice  the 
rights  or  interests  of  the  party  entitled  to  the  double  fund, 
nor  do  injustice  to  the  common  debtor,  nor  operate  inequit- 
ably on  the  interests  of  other  persons."  ^  It  is  said  :  "  A  court 
of  equity  will  take  care  not  to  give  the  junior  creditor  this 
relief,  if  it  will  endanger  thereby  the  prior  creditor,  or  in  the 
least  impair  his  prior  right  to  raise  his  debt  out  of  both  funds. 
The  utmost  that  equity  enjoins  in  such  a  case  is,  that  the 
creditor  who  has  a  prior  right  to  two  funds,  shall  first  exhaust 
that  to  which  the  junior  creditor  cannot  resort;  .but  where 
there  exists  any  doubt  of  the  sufficiency  of  that  fund,  or  even 
where  the  prior  creditor  is  not  willing  to  run  the  hazard  of 
getting  payment  out  of  that  fund,  I  know  of  no  principle  of 
equity  which  can  take  from  him  any  part  of  his  security, 
until  he  is  completely  satisfied."  ^  So  a  first  mortgagee  "  is 
entitled  to  be  paid,  or  proceed  to  foreclosure,  without  being 
obliged  to  investigate  titles  arising  after  his  own."  Hence, 
where  he  has  brought  a  writ  of  entry  to  foreclose,  equity  will 
not  order  him  to  assign  the  mortgage  on  |)ayment  of  the  mort- 
gage debt  and  costs.^  So  a  husband  and  wife  conveyed  the 
equity  of  redemption  of  her  land,  to  be  applied  in  payment 
of  certain  claims  against  the  husband,  which  were  previously 

1  Per  Storrs,  J.,  Ayres  v.  Husted,  15  Humph.  568;  Stamford,  &c.  v.  Bene- 

Conn.  616.  diet,  15  Conn.  437. 

-  Per    Spencer,    C.  J.,  Everston  v.  ^  Butler  v.   Taylor,   5   Gray,  455 ; 

Booth,  19  Johns.  493  ;  Butler  v.  Elliott,  Palmer  v.  Fowley,  Ibid.  545. 
15  Conn.   187;   Henshaw  v.  Wells,  9 


negligence,  allows  the  judgment  creditor  to  levy  on  property  included  in  the 
mortgage,  equity  will  not  relieve.     Baine  v.  Williams,  10  S.  &  AI.  113. 

Where  a  mortgage  debt  is  secured  by  other  property,  and  the  mortgagor 
conveys  the  land  subject  to  the  incumbrance,  the  amount  of  which  is  taken 
from  the  price,  and  the  mortgagee  receives  a  part  of  his  debt  from  the  other 
security  ;  in  equity,  the  whole  is  still  chargeable  upon  the  land,  for  the  benefit 
of  the  mortgagee,  to  the  extent  of  the  balance  of  his  debt,  and  of  the  mort- 
gagor for  the  residue.  Ferris  v.  Crawford,  2  Uenio,  595.  In  such  case,  it 
seems,  the  mortgagee,  having  brought  a  suit  for  foreclosure,  cannot  discon- 
tinue it,  until  the  amount  due  the  mortgagor  is  paid.  Ibid. 
29* 


342  THE   LAW    OF   MORTGAGES.  [CH.  XIII. 

secured  in  part  by  attachment  of  the  husband's  personal 
property,  upon  which  two  other  creditors  had  subsequent 
attachments ;  the  residue  of  the  equity  of  redemption  to  be 
applied  in  payment  of  a  debt  due  from  the  husband  to  his 
daughter,  and  the  balance,  if  any,  to  be  paid  to  another  cred- 
itor of  the  husband.  The  two  subsequent  attaching  cred- 
itors claimed  that  the  grantee  should  be  required  to  resort  to 
the  equity  of  redemption  for  satisfaction,  before  proceeding 
against  the  attached  property.  Held,  upon  a  bill  of  inter- 
pleader, the  law  would  not  require  him  to  do  so,  as  the  prop- 
erty constituting  the  two  funds  did  not  wholly  belong  to  the 
husband,  but  the  land  belonged  to  his  wife,  and  was  con- 
veyed only  as  collateral  security,  and  specifically  for  the  ben- 
efit of  other  creditors,  whose  equity  was  equal  to  that  of  the 
subsequent  attaching  creditors.^  (j) 

25.  In  general,  a  second  mortgagee  of  one  estate  cannot 
be  compelled  by  a  first  mortgagee  of  that  estate  and  another 
to  redeem  the  first  mortgage,  without  a  transfer  of  both 
estates.  But  if  between  the  two  mortgages  the  mortgagor 
sells  the  estate  not  i<icluded  in  the  second  mortgage,  and  the 
purchaser  afterwards  takes  an  assignment  of  the  first  mort- 
gage ;  the  purchaser  may  have  a  decree  in  one  suit  against 
the  mortgagor  for  the  completion  of  the  purchase,  and  against 
him  and  the  second  mortgagee  for  the  redemption  of  the 
estate  not  purchased  by  the  plaintiff",  on  payment  of  the  whole 
of  the  first  mortgage  debt,  or  for  foreclosure  of  that  estate.''^ 

26.  The  rule  of  equitable  adjustment  or  apportionment 
is  applicable,  where  mortgaged  estates  descend  to  different 
heirs.^  So  an  execution  purchaser  of  an  equity  of  redemption, 
as  well  as  a  subsequent  mortgagee,  may  in  equity  compel  a 
prior  mortgagee,  having  other  security,  to  exhaust  it,  before 
resorting  to  the  land.* 

1  Ayers  v.  Husted,  15  Conn.  505.  *  Miami,  &c.  v.  Bank,  &c.,  Wright, 

■^  Sober  v.  Kemp,  6  Hare,  155.  249. 

8  Lanoy  v.  Duke,  &c.  2  Atk.  444. 

U)  I"  South  Carolina,  the  right  to  compel  a  resort  to  one  particular  fund, 
among  several,  is  not  applied  in  favor  of  subsequent  incumbrancers  or  gen- 
eral creditors.     Bank  v.  Mitchell,  Rice,  (Eq.)  389. 


CH.  XIII.]    •  ,    SUCCESSIVE   MORTGAGES,   ETC.  343 

27.  Where  there  is  a  first  mortgage  on  two  estates,  a  sec- 
ond on  one  of  them,  and  a  third  on  the  other  or  botli,  the 
right  of  marshalling  will  not  be  exercised  in  favor  of  the  sec- 
ond, against  the  third  mortgagee,  though  with  notice  of  the 
second  incumbrance.  In  such  case,  the  first  mortgage:  will 
be  ratably  apportioned  between  the  two  estates.^ 

28.  In  case  of  a  mortgage  to  the  defendants,  to  secure 
debts  due  to  them  from  the  mortgagor,  and  also  from  a 
corporation,  the  corporation  at  the  same  time  mortgaging  to 
secure  the  defendants'  liabilities  on  its  account ;  the  whole 
property  was  insufficient  to  extinguish  the  liabilities  of  either 
description.  Held,  subsequent  mortgagees  could  not  claim 
the  application  of  a  proportional  part  of  the  value  of  the 
former  mortgage,  towards  the  company  debt,  but  the  defend- 
ants might  apply  the  whole  of  it  to  the  private  debts  of  the 
mortgagor.^ 

29.  In  connection  with  the  rights  and  obligations  of  parties 
arising  from  successive  mortgages,  may  be  considered  those 
which  result  from  other  relations,  collateral  to  the  original 
transaction  between  mortgagor  and  mortgagee.  It  will  be 
seen,  that  the  discretionary  and  flexible  powers  of  a  court 
of  equity  are  strikingly  exhibited,  in  adjusting  the  various 
claims  which  grow  out  of  a  conveyance  in  itself  very  simple, 
—  the  transfer  of  land  as  security  for  a  debt. 

30.  One  of  the  cases  in  which  the  rules  of  equity  are  thus 
applied,  is  where  a  debt  secured  by  mortgage  has  also  been 
secured  by  the  personal  obligation  of  a  surety.  In  such  case, 
it  is  held  to  be  "  a  general  and  well-established  principle  of 
equity,  that  a  sutety,  or  a  party  who  stands  in  the  situation 
of  a  surety,  is  entitled  to  be  subrogated  to  all  the  rights  and 
remedies  of  the  creditor  whose  debt  he  is  compelled  to  pay, 
as  to  any  fund,  lien,  or  equity,  which  the  creditor  had  aganist 
any  other  person  or  property  on  account  of  such  debt ; "  ^  go 

1  Barnes  v.  Racster,  1  Y.  &  Coll.  Met.  46 ;  Copis  v.  Middleton,  1  Tur.  & 

401.  R.  2.31 ;  Hoilgson  v.  Shaw,  3  My.  &  K. 

^Kellogg    V.    Rockwell,    19   Conn.  195;   Williams  y.  Owen,  13  Sim.  597. 

446.  See  Sprigg  v.  Lyles,  2  Gill  &  J.  44G  ; 

3  Per  Johnson,  J.,  Mathews  I'.  Aikin,  Ryan  v.  Sliawneetown,  14  lilin.  20; 

1  Comst.  599;    Root  v.  Bancroft,  10  Callum  v.  Branch,  &c.  23  Ala.  797; 


344  THE    LAW    OF    MORTGAGES.  [CH.  XIII. 

far  as  is  necessary  for  his  indemnity.^  And  it  is  sometimes 
held,  that  a  surety  for  a  debt  secured  by  mortgage  may,  even 
before  he  has  been  injured,  compel  payment  from  the  land 
in  the  first  instance.^ 

31.  In  Hays  v:  Ward,^  Chancellor  Kent  says :  — "  This 
doctrine  does  not  belong  merely  to  the  civil  law  system.  It 
is  equally  a  well-settled  principle  in  the  English  law,  that  a 
surety  will  be  entitled  to  every  remedy  which  the  principal 
debtor  has,  to  enforce  every  security,  and  to  stand  in  the 
place  of  the  creditor,  and  have  those  securities  transferred  to 
him,  and  to  avail  himself  of  those  securities  against  the 
debtor.  This  right  stands  not  upon  contract,  but  upon  the 
same  principle  of  natural  justice  upon  which  one  surety  is 
entitled  to  contribution  against  another."  *  So  it  is  said  in  a 
recent  English  case,  that  "  the  surety's  right  is  not  merely  a 
potential  equity;  which,  though  it  may  be  asserted  by  the 
party  himself,  yet  cannot  bind  third  persons.  The  equity 
gives  to  the  surety  a  right  to  call  for  a  transfer  of  the  securi- 
ties, and  so  binds  those  securities,  into  whatever  hands  they 
may  come  with  notice  of  the  charge."  ^  And  it  is  now  held, 
that  the  right  of  subrogation,  though  originating  in  courts  of 
equity,  is  fully  recognized  as  a  legal  right ;  and  any  act  of 
the  creditor  which  interferes  with  that  right,  and  is  a  fraud 
upon  it,  in  law,  as  well  as  at  equity,  operates  to  discharge 
the  surety.^ 

32.  Conformably  to  these  views,  where  a  creditor  recov- 
ered judgment  against  his  debtor,  sold  his  goods  on  execu- 
tion, and  took  a  mortgage  to  secure  the  payment,  and  a 
surety  subsequently  paid  the  debt ;  the  surety  was  held  en- 
titled to  the  benefit  of  the  mortgage.^  So  a  surety  may  claim 
the  benefit  of  the  mortgage,  as  against  a  purchaser  of  the 
land  from  the  mortgagor,  although  he  satisfied  the  debt  after 

Garwood   v.   Eldridge,   1  Green,   Ch.  ^  4  John.  Ch.   130;  ace.  Bowker  v. 

145  ;  Barnes  v.  Morris,  4  Ired.  Eq.  22;  Bull,  1  Sim.  (New)  34. 

Skillman  v.  Teeple,  Saxt.  232  ;   Bab-  *  See  Hodgson  v.  Shaw,  3  My.  &  K. 

cock  V.  Morse,  19  Barb.  140.  183 ;  Norton  v.  Coons,  3  Denio,  130. 

1  Bailey  i-.  Warners,  2  Wms.  87.  &  Bowker  v.  Bull,  1  Sim.  (New)  34; 

-  M'Lcan  i-.  Lafayette,  &e.,  3  McL.  see  Higgins  v.  Frankis,  10  Jur.  328. 

687;  State,  &c.  v.  Campbell,  2  llich.  "  La  Farge  v.  Herter,  11  Barb.  159. 

Eq.  179.  7  ottman  v.  Moak,  3  Saudf.  Ch.  431. 


CH.   XIII.]  SUCCESSIVE   MORTGAGES,  ETC.  345 

having  notice  of  the  conveyance.  Thus,  a  mortgage  being 
made  to  secure  the  indorser  of  a  note,  the  mortgagor  after- 
wards conveyed  the  land  ;  the  indorser  confessed  a  jud"-- 
ment  on  the  note,  at  the  same  time  taking  other  security 
from  the  maker,  which  proved  worthless ;  the  indorser  sat- 
isfied the  judgment  after  he  had  notice  of  the  conveyance 
from  the  mortgagor ;  and  the  judgment  creditor  assigned 
the  mortgage  to  the  indorser,  to  secure  his  indemnity.  Held, 
the  mortgage  was  still  in  force  for  the  indorser's  benefit,  he 
being  subrogated  to  the  rights  of  the  mortgagee.^  So  a  mort- 
gagor conveyed  his  estate,  the  purchaser  assuming  the  mort- 
gage debt.  The  latter  then  conveyed  the  estate,  the  pur- 
chaser from  him  also  ^.ssuming  the  mortgage  debt.  The 
mortgagor  having  obtained  a  decree  in  equity  against  both 
purchasers  for  payment  of  the  debt  and  for  his  own  indem- 
nity ;  the  first  purchaser  was  compelled  by  execution  to  pay 
the  debt.  Held,  he  thereby  became  subrogated  to  the  mort- 
gagee, and  without  an  actual  assignment  might  foreclose 
the  mortgage.^ 

33.  Where  a  deed  is  executed  for  the  security  of  notes 
indorsed  by  different  individuals,  a  court  of  chancery,  at  the 
instance  of  any  of  the  indorsers,  will  compel  a  pro  raid  dis- 
tribution of  the  proceeds  of  the  trust  sale.^ 

34.  A  surety  for  a  debt,  secured  by  mortgage,  has  in  equity 
substantially  the  same  rights  in  reference  to  the  property, 
which  he  would  have  if  he  were  actually  a  party  to  the  mort- 
gage. Thus,  in  1827,  R.  &  J.  Bancroft  mortgaged  to  Root  & 
Stow  to  secure  a  note  to  Root,  and  two  others  signed  by  them, 
and  Stow  as  surety.  In  1832,  the  first  note  being  unpaid,  a 
writ  of  entry  was  sued  out  against  the  mortgagors,  and  a 
conditional  judgment  recovered  and  execution  taken  out,  but 
never  delivered  to  an  officer,  nor  was  possession  ever  taken. 
Stow,  having  paid  the  notes  for  which  he  was  liable,  brought 
an  action  against  the  Bancrofts  for  the  amount  paid  by  him, 

1  Gossin  V.  Brown,  11  Penn.  527.  ''  McDermott  v.  Bank,  &c.  9  Ilunipli. 

2  M'Lean  v.   Towle,  3   Sandf.   Ch.    123. 
579. 


346  THE    LAW    OF   MORTGAGES.  [CH.  XIII. 

recovered  judgment,  caused  the  equity  of  redemption  to  be 
sold  on  execution,  and  became  himself  the  purchaser.  The 
first  note  remaining  unpaid,  the  plaintiffs,  administrators  of 
Root,  demanded  possession  of  the  land,  and  bring  this  suit, 
being  a  bill  in  equity  against  the  mortgagors  and  Stow, 
alleging  that  the  latter  held  his  moiety  of  the  legal  estate  in 
trust  to  secure  payment  of  the  first  notes,  and  was  bound  to 
account  with  the  plaintiffs  for  the  rents  and  profits.  Held, 
the  lands  should  be  held  by  the  plaintiffs,  according  to  their 
respective  equitable  rights  ;  that  the  Court  had  jurisdiction 
in  equity,  both  because  the  original  mortgagees  were  trustees 
for  each  other  and  tenants  in  common,  and  because,  in  regard 
to  mortgaged  lands,  the  administrator  represents  the  intes- 
tate. "  On  the  face  of  the  mortgage  deed.  Stow  took  a  moi- 
ety of  the  real  estate,  but  having  no  beneficial  interest  in  the 
condition,  he  was  prima  facie  trustee  of  such  moiety,  in  the 
first  instance,  for  Root.  Then,  if  Stow,  by  this  deed,  ac- 
quired any  right,  legal  or  equitable,  to  the  mortgaged  prop- 
erty, as  security  for  the  repayment  to  him  of  any  sums  which 
he,  as  surety  on  the  two  notes,  might  be  held  to  pay  —  as 
we  think  he  did  —  his  condition  in  relation  to  Root  could  not 
be  better  than  that  of  a  second  mortgagee.  His  claim  must 
be  subordinate  to  that  of  Root,  and  after  Root  had  been  paid 
in  full.  The  condition  was,  to  secure  to  Root  the  payment 
of  all  the  notes.  It  was  only  after  the  mortgagors  had  failed 
to  pay  Root,  and  after  Stow,  as  surety,  had  been  obliged  to 
pay  Root,  that  Stow  had  any  claim  for  security,  or  any  equit- 
able ot  beneficial  interest.  If  the  name  of  Stow  had  not  been 
introduced  into  the  first  deed,  but  the  Bancrofts  had  made  a 
second  mortgage  to  Stow,  conditioned  to  indemnify  him 
against  his  suretyship  to  Root,  the  relation  of  Root  and  Stow 
would  have  been  nearly  similar ;  the  claims  of  the  latter 
being  subordinate  to  those  of  the  former."  "Being  tenants 
in  common,  no  entry  of  the  one,  under  a  purchase  of  the 
equity  of  redemption,  or  under  color  of  a  judgment  or  other- 
wise, would  be  deemed  an  ouster  of  the  other  ;  but,  as  be- 
tween themselves,  the  entry  enures  to  the  benefit  of  both." 


CH.  XIII.]  SUCCESSIVE   MORTGAGES,   ETC.  347 

Decreed,  accordingly,  that  an  account  be  bikeu  of  llic  sum 
due  on  the  first  note  ;  upon  payment  of  which,  the  defend- 
ant, Stow,  should  hold  the  land  ;  but  unless  paid  within  some 
short  time,  to  be  fixed  by  the  Court,  the  plaintills  to  iiave 
possession.^ 

35.  If,  by  the  creditor's  neglect,  the  benefit  of  some  of 
the  securities  is  lost,  the  surety  is  pro  tanto  discharged.-  [k) 
Thus  A ,  as  principal,  and  B.,  as  surety,  executed  a  note 
to  C.  After  the  note  fell  due,  A.  executed  a  deed  in  trust  to 
C,  with  authority  to  the  trustee  to  sell,  for  the  satisfaction 
of  this  debt,  after  six  months.  The  deed  was  made  without 
the  assent  of  B.  Held,  an  agreement  that  the  collection  of 
the  note  should  be  delayed  was  necessarily  implied,  being 
further  established  by  the  attending  circumstances ;  and  the 
surety  was  discharged.^ 

36.  But  on  the  other  hand,  it  has  been  held  that,  if  a  cred- 
itor accepts  from  the  principal  debtor  a  mortgage  to  secure 
his  debt,  which  mortgage  is  payable  at  a  day  subsequent  to 
the  maturity  of  the  debt ;  he  does  not  thereby  give  time  to  the 
principal  upon  the  debt,  and  a  surety  for  the  debt  will  not 
be  discharged.  A  giving  time,  to  discharge  a  surety,  must 
operate  upon  the  debt  itself.* 

37.  And  Upon  the  general  subject  the  following  distinc- 
tions have  been  laid  down.  Where  one  executes  a  bond  with 
surety,  and  at  the  same  time  a  mortgage  to  secure  the  same 

1  Root  V.  Stow,  13  Met.  5,  9,  10.  *  U.  States  v.  Hodge,  6  How.  U.  S. 

2  Capel  V.  Butler,  2  Sim.  &  S.  457.       279. 

3  Lea  V.  Dozier,  10  Humph.  447. 


(k)  On  the  other  hand,  a  surety  may  lose  his  claim  on  the  principal,  by 
his  own  laches  in  relation  to  a  mortgage.  A.'s  land  was  sold  on  execution 
against  him  as  B.'s  surety,  and,  within  the  year  allowed  for  redemption,  A. 
mortgaged  the  land  to  C,  without  referring  to  the  sale.  C.  filed  a  hill  for 
foreclosure,  to  which  A.  and  B.  were  parties.  Neither  party  answered,  and 
the  land  was  sold  under  a  decree.  Held,  A.'s  payment  was  withdrawn  and 
lost  to  B.  by  A.'s  own  default,  and  therefore  A.'s  claim  on  B.  was  extin- 
guished.    Jarvis  v.  Whitman,  12  B.  INIon.  97.       « 


348  THE   LAW   OF  MORTGAGES.  [CH.  XIII. 

debt,  which  the  surety  pays,  the  latter  shall  stand  in  the  place 
of  the  creditor  in  respect  to  the  mortgage.  So  if  there  be 
only  one  specialty,  namely,  the  mortgage ;  because  there  the 
payment  does  not,  as-  in  case  of  a  bond,  extinguish  the  secur- 
ity without  a  reconveyance  ;  there  is  something  to  assign  or 
transfer.  But  if  a  further  charge  is  afterwards  made  by  the 
mortgagor,  in  favor  of  the  same  mortgagee,  the  surety  can- 
not, on  paying  off  the  first  charge,  call  for  an  assignment  of 
the  mortgage,  without  redeeming  the  latter,  unless  a  right  of 
redemption  is  given  him.^  So  the  doctrine  of  subrogation 
does  not  apply,  where  the  surety  guarantees  one  part  of  the 
debt,  and  the  security  is  given  for  another  part ;  nor, It  seems, 
when  the  security  is  subsequently  given,  by  an  independent 
transaction.  Nor  can  the  surety  require  an  assignment  of 
the  original  debt,  nor  of  an  instrument  which  becomes  void 
by  payment  of  the  debt,  as  in  case  of  a  joint  and  several 
bond  by  principal  and  surety.  Otherwise,  where  the  surety 
has  executed  a  separate  obligation,  which  is  paid  by  him  or 
from  his  estate.^ 

38.  Nor  does  the  doctrine  of  subrogation  apply,  where 
a  party,  though  in  fact  a  mere  surety,  does  not  appear 
as  such  either   upon  the  note  or  the  mortgage,  (l)      Thus 

1  Copis  V.  Middleton,  1  Tarn.  &  R.        -  Wade  v.    Coope,   2  Sim.  155;    1 
231 ;  Hodgson  v.  Shaw,  3  My.  &  K.     Turn.  &  R.  231.  J 

195 ;  Williams  v.  Owen,  13  Sim.  597.  i 


(I)  After  the  recovery  of  a  judgment  against  principal  and  surety,  and  a 
levy  upon  the  property  of  the  principal,  the  creditor  took  a  bond  and  mort- 
gage from  the  principal,  for  the  amount  of  the  judgment,  and  in  absolute 
payment  thereof,  and  acknowledged  satisfaction  of  the  execution,  by  an 
indorsement  thereon,  and  afterwards  brought  an  action  upon  the  judgment. 
Held,  the  suretyship  might  be  proved  by  evidence  aliunde;  and  was  a 
defence  to  the  action.  La  Farge  v.  Herter,  11  Barb.  159.  Also,  that  the 
plaintiff  could  not  prove  that  the  bond  and  mortgage  were  usurious.  Had 
the  plaintiff  attempted  to  foreclose,  and  the  mortgagor  set  up  the  usury, 
the  plaintiff  might  rely  upon  the  invalidity  of  the  bond  and  mortgage ; 
but  his  remedy  on  the  judgment,  even  then,  would  only  be  revived  against 
the  mortgagor,  and  not  against  his  co-defendant.     Ibid. 


CH.  XIII.]  SUCCESSIVE    MORTGAGES,    ETC.  349 

the  defendants  executed  a  mortgage  to  the  plaiiitiil"  to 
secure  a  joint  and  several  note,  one  of  them,  however,  bcin*' 
in  fact  only  a  surety  for  the  other.  The  principal  debtor 
afterwards  mortgaged  a  part  of  the  land,  and  the  mortgage 
was  assigned  to  the  plaintiff,  who  foreclosed  the  second  mort- 
gage. He  then  brings  this  bill  to  foreclose  the  first.  Held, 
the  surety  defendant  was  not  entitled,  as  he  claimed,  to  stand 
in  the  place  of  the  first  mortgagee,  and  hold  the  whole  prop- 
erty for  his  indemnity,  because  neither  the  record  of  the  first 
mortgage  nor  the  note  indicated  that  he  was  a  surety,  and 
the  plaintiff  stood  as  a  bond  fide  purchaser  of  that  mortgage 
without  notice.^  So,  where  one  mortgages  land,  and  after- 
wards gives  the  mortgagee  collateral  security  for  the  debt,  a 
purchaser  of  the  land  from  the  mortgagor,  subject  to  the 
mortgage,  cannot  claim  the  benefit  of  such  security,  but 
the  land  becomes  the  primary  fund  for  payment  of  the 
debt.^  {m) 

39.  A  mortgagor  may  himself,  under  some  circumstances, 
have  the  rights  of  a  surety  in  regard  to  the  mortgage  debt. 
Thus  where  A.  executed  a  mortgage  to  B.,  to  secure  a  debt, 
and  also  transferred  to  B.,  without  indorsement,  two  notes  of 
a  third  person,  which  notes  A.  guaranteed  ;  and  B.,  at  the 
same  time,  by  a  defeasance,  stipulated  that  "  B.  should  not 


1  Orvis  V.  Newell,  17  Conn.  97.  ^  Brewer  v.  Staples,  3  Sandf.  Ch. 

579. 


(m)  Indorsed  notes  were  given  by  the  assignee  of  an  e(juity  of  redemp- 
tion to  the  assignee  of  the  mortgage,  for  interest  due  on  the  mortgage,  and 
were  paid  at  maturity  by  the  indorser.  No  assignment  of  the  mortgage  was 
made.  On  the  sale  of  the  premises,  the  indorser  claimed  to  be  subrogated 
to  the  rights  of  the  mortgagee,  to  the  extent  of  the  notes  paid  by  hnn,  and 
thus  to  take  precedence  of  a  subsequent  mortgagee  iu  the  distribution  of 
the  proceeds.  Held,  that  the  indorser,  having  been  no  party  to  the  original 
transaction,  and  never  having  been  the  surety  of  the  original  debtor,  and 
moreover  having  paid  only  a  portion  of  the  debt,  could  not  maintain  his  claim 
of  substitution,  but  must  take  rank  as  a  simple  contract  creditor  only.  Swan 
V.  Patterson,  7  Md.  164. 

VOL.  I.  30 


350  THE    LAW    OP    MORTGAGES.  [CH.    XIII. 

call  on  A.,  or  hold  him  liable,  until  the  insolvency  or  ina- 
bility to  pay  of  the  obligors  was  ascertained  by  legal  process ; " 
held,  the  deeds  must  be  construed  together,  and  the  mortgage 
was  not  to  be  enforced,  until  the  insolvency,  and  inability  to 
pay,  of  the  maker  of  the  notes.  But,  also,  that  collection  "  by 
legal  process  "  referred  only  to  a  judgment  and  execution  at 
law,  and  that  the  party  was  not  bound  to  resort  to  equity,  to 
remove  any  impediments  to  a  satisfaction  of  a  judgment 
and  execution  at  law,  such  as  a  fraudulent  conveyance,  or 
the  like.i 

40.  A  subsequent  mortgagee,  as  well  as  a  surety,  may  in 
equity  claim  the  benefit  of  other  security  taken  by  the  first 
mortgagee.  And  where  a  mortgagee  takes  subsidiary  secur- 
ity, to  the  benefit  of  which  a  subsequent  mortgagee  is  en- 
titled, and  there  is  likely  to  be  a  long  controversy,  a  decree 
will  be  made  for  the  immediate  satisfaction  of  the  first  mort- 
gage, instead  of  requiring  the  mortgagee  to  resort  to  the 
additional  security ;  and  the  decree  will  at  the  same  time 
provide  for  the  second  mortgagee's  right  of  subrogation. ^ 

41.  A  mortgage  may  be  made  for  indemnity  to  a  surety, 
as  well  as  to  a  creditor  who  holds  the  additional  security  of 
a  surety  for  the  mortgage  debt. 

42.  In  reference  to  the  rights  of  the  surety  himself,  hold- 
ing such  mortgage  of  indemnity ;  he  cannot  foreclose  till  he 
has  paid  the  debt,  and  the  bill  must  allege  such  payment.^ 
But  if  there  is  a  power  of  sale,  whenever  a  judgment  on  the 
debt  is  rendered  against  the  surety,  and  before  maturity  of 
the  debt  he  purchases  or  pays  it,  equity  will  enforce  the 
deed  for  his  benefit,  to  the  extent  of  his  disbursement.'*  (See 
p.  451,  n.) 

43.  Where  a  mortgage  is  given  to  indemnify  the  surety 
\ipon  a  note,  proof  of  execution  and  registry  is  primd  facie 
evidence  of  title  without  producing  the  note,  which  is  not 
presumed  to  be  in  the  mortgagee's  possession.  The  burden 
of  proof  is  on  the  defendant.^ 

'  Burton  v.  Wheeler,  7  Ired.  I']q.  •'  Shepard  v.  Shepard,  G  Conn.  37  ; 
217.  Lewis  v.  Kicliey,  5  Ind.  152. 

2  King  V.  McVickar,  3  Sandf.  Ch.         *  Graham  v.  King,  15  Ala  573. 
192.  6  i3jivis  V.  Mills,  18  Pick.  394. 


CH.  xiil]  successive  mortgages,  etc.  3o1 

44.  A  deed,  conditioned  to  become  void,  unless  a  eerlain 
sum  is  paid  by  the  grantee  by  a  certain  day,  is  a  morl"a.r,^^. 
If  the  mortgagee  give  security  for  the  debt,  he  has  the  burden 
of  proving  payment.  If  payable  in  money,  he  must  prove 
payment  on  the  day,  otherwise  the  condition  is  broken,  and 
the  estate  revests,  by  operation  of  law,  without  formal  entry.' 

45.  A  mortgage  of  indemnity,  reciting  an  accompanying 
bond,  which  in  fact  was  never  delivered,  is  held  valid,  lint 
not  a  mortgage,  reciting  that  the  mortgagee  is  liable  for  the 
mortgagor,  when  in  fact  the  former  has  made  a  mere  verbal 
promise,  not  binding  in  law ;  as  against  creditors  of  the  mor^ 
gagor.^ 

46.  Where  a  mortgage  is  made  to  a  surety,  for  the  pur- 
pose of  indemnifying  him  against  his  liability  on  account  of 
the  mortgagor,  substantially  the  same  equitable  rules,  muta- 
tis mutandis,  are  applied,  as  in  the  case  above  referred  to,  of 
a  mortgage  accompanied  by  other  security.^  (w)  It  is  held, 
that  such  a  mortgage  is,  in  reality,  a  security  for  the  debt 
itself,  to  the  benefit  of  which  the  creditor  is  entitled  ;*  more 
especially  where  both  debtors  become  insolvent.^     So  where 

1  Austin  V.  Downer,  25  Verm.  558.  *  Lewis  v.  De  Forest,  20  Conn.  427 ; 

2  Lake  v.  Brutton,  23  Eng.  L.  &  Eq.  Stockard  v.  Stockard,  7  Humph.  303. 
628.  '"  Moore  v.  Mobcrly,  7  B.  Men.  299; 

3  See  Holabird  v.  Burr,   17    Conn.  Storer   v.    Herrington,    7    Ala.    142  ; 
550  ;  Roinbard  v.  Bank,  &c.  6  B.  Mon.  Dick  v.  Truly,  1  S.  &  M.  Cli.  557. 
252;  Miller  v.  Mussclman,  6  Whart. 

354 ;    Post    V.    Tradesmen's,    &c.    28 
Coun.  420. 


(n)  With  reference  to  the  surety  himseli",  as  has  been  seen,  (s.  42,)  it 
is  hekl  that  a  mort^'age  hold  as  an  indemnity  cannot  be  foreclosed,  until 
the  mortgagee  has  had  something  to  pay,  or  has  been  otherwise  injured. 
Francis  v.  Porter,  7  Ind.  213.  Thus,  where  an  administrator  excciiteil  a 
mortgage  to  his  sureties,  conditioned,  that,  if  he  should  faithfully  adminis- 
ter, &c.,  and  save  the  mortgagees  harmless,  as  such,  sureties,  the  mortgage 
should  be  void ;  lield,  the  mortgagees  could  not  foreclose,  until  a  ftiilure  on 
the  part  of  the  administrator  to  adminisler  faithfully.  Ellis  v.  Martin,  7  Ind. 
652.  But  where  the  mortgage  contains  an  express  covenant,  it  is  iield,  tliat 
the  surety  may  maintain  a  suit  for  foreclosure  before  actual  paj  mcnt  of  the 
debt.     De  Cottes  v.  Jeffers,  7  Flori.  284. 


352  THE    LAW    OF    MORTGAGES.  [CH.  Xllf. 

a  mortgagee  assigns  the  mortgage  and  guarantees  the  debt, 
taking  other  security  for  his  own  indemnity,  the  general  rule 
is  applicable  in  favor  of  the  assignee,  even  though  the  as- 
signee did  not  originally  rely  upon  such  security  or  know  of 
its  existence.^  (o) 

47.  Where  a  mortgage  is  made  to  secure  an  indorser,  the 
creditor  cannot  claim  the  benefit  of  it  till  the  indorser's  liabil- 
ity is  fixed ;  and,  if  the  latter  is  discharged  by  his  laches,  he 
loses  all  title  to  the  property.^  (p)  And  it  is  held,  that  an 
accommodation  indorser  may  discharge  a  mortgage  made  for 
his  indemnity,  at  any  time  before  his  liability  becomes  abso- 
lute.^ So  a  surety  receiving  a  mortgage  as  security  may 
surrender  it  at  any  time  before  the  insolvency  of  the  princi- 
pal debtor.  The  security  does  not  in  the  first  instance  at- 
tach to  the  debt,  as  an  incident,  nor  constitute  the  mortgagee 
a  trustee,  but  the  creditor's  equity  in  relation  to  it  arises  sub- 
sequently, upon  such  insolvency.  And  if  the  security  has 
been  thus  surrendered,  and  the  property  mortgaged  to  an- 
other party  ;  a  court  of  equity  will  not  compel  the  applica- 
tion of  it  to  the  original  creditor,  to  whom  the  former  mort- 
gagee became  surety  for  the  mortgagor.'* 

48.  Where  a  surety  obtains  a  mortgage  from  the  princi- 

i  Curtis  V.  Tyler,  9  Paige,  432.  *  Jones  f.  Quinnipiack,  &c.  29  Conn. 

2  Tilford  V.  James,  7  B.  Mon.  336.        25. 
8  Ibid. 


(o)  It  has  been  held,  tliat  a  mortgasie  given  by  a  guardian  to  his  sure- 
ties, conditioned  "  to  pay  over  to  the  ward  all  the  moneys  in  the  hands  of 
the  guardian,  as  such  when  he  (the  ward)  should  arrive  of  full  age,"  does 
not  create  a  trust  in  favor  of  the  ward  ;  but  the  mortgagees  have  the  legal 
and  beneficial  interest  in  it,  and  may  use  it  as  their  own.  Miller  v.  Wack, 
Saxton,  204. 

(p)  The  maker  of  a  note  gave  to  the  indorser  a  judgment  bond  for  secu- 
rity. The  note  was  protesttid,  but  no  notice  given  to  the  indorser,  who, 
however,  in  consideration  of  a  release  from  his  liability,  assigned  the  judg- 
ment to  the  holder  of  the  note.  Held,  the  waiver  of  want  of  notice  defeated 
the  claim  of  a  subsequent  mortgagee.  Phillips  v.  Thompson,  2  Johns.  Ch. 
41H.     See  Hilton  r.  Cathervvood,  10  Ohio,  St.  109. 


oil.  xiil]  successive  mortgages,  etc.  353 

pal  debtor,  to  secure  him  against  his  liability,  u„d  uj.so  to 
secure  a  debt  due  to  hiuiself,  the  creditor  is  entitled  to  the 
benefit  of  the  mortgage,  and  to  be  paid  out  of  the  first  pro- 
ceeds, in  preference  to  the  surety  himself,  or  his  assignees 
under  an  assignment  for  the  benefit  of  his  creditors.^ 

49.  A  mortgage  was  made  to  indemnify  the  mortgagee  for 
his  liability  as  surety  upon  several  notes.  Some  of  the  iiot(>s 
being  barred  by  the  statute  of  limitations,  the  mortgagor  be- 
came an  insolvent  debtor  under  the  insolvent  laws  of  Ma.s- 
sachusetts.  Held,  the  mortgagee  might  apply  the  property 
first  to  the  notes  still  in  force,  and  the  rest  should  be  distrib- 
uted pro  rata  among  the  holders  of  the  others,  who  had  an 
equitable  lien  on  the  fund  ;  but  that  he  could  not  pay  some 
of  the  outlawed  notes  from  the  property  to  the  exclusion  of 
others,  the  latter  having  an  equal  equitable  claim  with  the 
former.  Also,  that  the  property  was  subject  to  this  equita- 
ble lien,  although  the  mortgage  had  been  foreclosed,  and  as 
against  attaching  creditors  or  grantees  of  the  mortgagee,  or 
an  assignment  under  the  insolvent  laws.'^^ 

50.  A  mortgage  having  been  made  to  indemnify  a  surety 
for  the  mortgagor  upon  various  debts ;  by  an  arrangement 
between  one  of  the  creditors,  the  mortgagor  and  mortgagee, 
the  mortgagor  paid  a  part  of  the  debts,  and  the  creditor  the 
rest,  the  latter  taking  an  assignment  of  the  mortgage,  to  hold 
as  security  for  his  own  debt.  Held,  as  against  a  judgment 
creditor  of  the  mortgagor,  prior  to  the  assignment,  the  as- 
signee could  enforce  the  mortgage  only  for  the  amount  paid 
to  procure  it.^ 

51.  Mortgage  to  indemnify  an  indorser ;  with  a  provision, 
that,  if  the  mortgagor  fail  in  payment  of  the  note,  whoever 
might  be  the  holder,  the  mortgagee,  upon  allidavit  of  non- 
payment and  the  amount  due,  might  foreclose,  &c.  The 
mortgage  was  afterwards  transferred,  without  recourse,  to  the 
indorsee  of  the  note.     Held,  the  mortgage  was  valid  in  tin- 

1  Ten  Eyck  v.  Holmes,  3  Sanilf.  Cli.        "  Yclverton  v.  Shelden,  2  Sandf.  Cli. 
428.  481. 

■^  Eastman  v.  Foster,  8  Met.  It). 
30* 


354  THE   LAW    OF   MORTGAGES.  [CH.  XIII. 

indorsee's  hands,  and  might  be  foreclosed  by  him,  and  the 
property  subjected  to  payment  of  the  note.'  Such  mortgage 
creates  a  trust  for  the  benefit  of  the  indorsee  ;  and,  if  the 
mortgage  is  not  assigned,  the  mortgagee  may  be  compelled 
to  allow  the  use  of  his  name  in  a  suit  to  enforce  payment  of 
the  note. 2 

52.  Where  judgment  is  recovered  against  both  principal 
and  surety,  the  former  having  given  a  mortgage  of  indemnity 
to  the  latter,  the  surety  cannot  claim  priority  of  older  judg- 
ments against  the  principal  alone,  in  reference  to  a  lien  upon 
the  land,  by  reason  of  his  mortgage.  He  can  claim  only 
upon  the  mortgage  directly.*^ 

53.  If  the  surety,  believing  that  his  mortgage  gives  him 
such  priority  over  older  judgments,  causes  the  execution 
against  himself  and  the  principal  to  be  levied  on  the  mort- 
gaged land,  and  become  himself  the  purchaser ;  he  may 
afterwards  foreclose  in  equity,  especially  after  stipulating 
that  the  land  shall  sell  for  as  much  as  the  execution  price.^ 

54.  Where  a  mortgage  is  made  to  indemnify  the  mort- 
gagee for  his  liability  upon  subsequent  indorsements  on  ac- 
count of  the  mortgagor;  judgments  having  been  recovered 
against  the  indorser  upon  his  indorsements,  if  others,  having- 
a  lien  upon  the  land,  bring  a  bill  in  equity,  for  the  purpose 
of  having  it  sold,  and  all  parties  in  interest  are  before  the 
Court;  the  mortgagee  may  require  that  the  proceeds  be 
applied  to  such  judgments,  though  he  has  not  paid  them.^ 

55.  Where  a  conveyance  is  made  to  a  trustee,  to  indem- 
nify the  surety  of  the  grantor,  who,  after  paying  the  debt, 
takes  a  conveyance  from  the  trustee  in  satisfaction  of  the 
debt,  under  an  order  from  the  heirs  of  the  grantor,  made  for 
"the  safety  of  the  trustee,"  and  under  an  impression  that 
they  "  have  no  interest  in  the  premises ; "  the  equitable  rights 
of  the  heirs  are  not  thereby  prejudiced.*^  If  the  trustee,  in 
such  case,  convey  to  the  surety,  in  satisfaction  of  the  debt 
of  the  grantor,  the  surety,  as  to  minor  heirs  of  the  grantor, 

1  Stewart  v.  Preston,  1  Branch,  10.  *  Ibid. 

■•'  Ibi.i.  6  Kramer  v.  Bank,  &c.  15  Ohio,  263. 

^  ytovcT  i".  Ilcrrington,  7  Ala.  142.  ^  Irwin  v.  Longworth,  20  Ohio,  581. 


en.   XIII.]  SUCCESSIVE   MORTGAGES,   ETC.  ;^5.') 

takes  the  premises  charged  with  the  trust;  and  the  ori<riiial 
trustee  will  be  responsible  for  a  breach  of  the  trust  by  his 
grantee.^ 

56.  In  such  case,  an  order  to  the  original  trustee  to  con- 
vey to  the  surety,  executed  by  the  heirs,  for  the  safety  of 
the  original  trustee,  is  not  a  surrender  of  the  equity  of  iho 
heirs  in  the  premises  so  conveyed,  unless  the  order  contain 
words  which  expressly,  or  by  inference,  surrender  the  equity;-' 

57.  Where  one  of  several  sureties  receives  a  mortgage  as 
indemnity,  and  pays  the  debt,  unless  he  use  reasonable  dili- 
gence to  appropriate  the  mortgage  to  a  repayment,  he  cannot 
compel  contribution.'^ 

58.  Where  a  mortgage  is  made  to  a  surety,  to  indemnify 
him  as  surety  on  several  debts,  on  some  of  which  there  are 
co-sureties,  and  the  mortgage  proves  insufficient  to  satisfy 
all  the  debts,  it  should  be  applied  to  them  pro  ratd:^ 

59.  Where  one  of  several  sureties  is  secured  by  mortgage, 
he  is  not  bound  to  enforce  his  mortgage,  before  he  pays  the 
debt,  or  has  reason  to  apprehend  that  he  must  pay  it,  unless 
the  mortgagor  is  wasting  the  estate ;  in  which  case,  if  he 
fails  to  do  so,  he  is  chargeable  to  his  co-sureties,  with  the 
fair  value  of  the  property  at  a  coercive  sale.^ 

60.  Where  one  of  two  sureties  receives  property  by  deed 
of  trust,  to  indemnify  him,  and  the  trustee  sells  the  property 
by  direction  of  the  surety,  but  fails  to  collect  the  money,  he 
is  not  entitled  to  contribution.*^ 

61.  A.  mortgaged  to  B.,  to  secure  him  as  a  surety  for  a 
debt  which  B.  afterwards  paid.  B.  received  from  the  estate 
of  C,  a  co-surety,  a  contribution  towards  the  sum  thus  paid. 
Held,  B.  might  still  claim  upon  the  mortgage  the  full  amount 
paid  by  him,  leaving  the  account  between  B.  and  the  estate 
of  C.  to  be  adjusted  between  themselves." 

62.  A.  made  a  mortgage  to  B.,  conditioned  to  pay  a  debt 
due    him,   and   also   certain  other  debts,  on  which   B.  was 

1  Irwin  V.  Longworth,  20  Ohio,  581.  ^  Teeter  t:  Tierce,  11  JJ.  .Mon.  li'M. 

2  ii3i(j  «  Cliilton  V.  Cliapmaii,  l:{  Mis.  4/0. 
s  Goodloe  I'.  Cliiv,  6  B.  Mon.  236.  "  Strong  '.-.  liiiuicliani,  4  Allen,  66». 
*  Ibid. 


356  THE    LAW    OF    MORTGAGES.  [CH.  XIII. 

liable  as  surety  of  A.,  in  some  cases  alone,  and  in  others 
jointly  with  other  persons.  A.  also  assigned  to  B,  certain 
personal  securities  for  the  same  object.  Held,  that  B.  took  the 
mortgage  and  securities  for  the  benefit  of  all  such  creditors 
and  his  joint  sureties ;  that  the  fund  arising  from  them  should 
be  a^iplied  pru  rata  to  all  the  debts,  and,  on  a  proceeding  for 
contribution  by  B.  against  his  co-sureties,  that  they  were 
liable  only  for  their  shares  of  the  deficit  after  such  7?ro  ratd 
application  of  the  fund  to  all  the  debts,  including  the  debt 
due  to  B.i 

63.  Where  property  was  mortgaged  to  two  sureties  of 
the  mortgagor  to  secure  them,  and,  after  his  default  and 
their  payment  of  his  debt,  was  sold  and  purchased  for  the 
joint  benefit  of  the  mortgagees,  and  one  of  them  sold  all  his 
interest  in  the  purchase  to  a  junior  mortgagee,  with  the 
agreement,  that,  if  he  was  entitled  to  the  whole,  it  passed  by 
the  sale,  and  if  he  was  entitled  to  only  half,  that  part  passed : 
the  co-mortgagee  having  died ;  held,  on  a  bill  to  which  all 
interested  were  parties,  that  one  half  of  the  mortgaged  prem- 
ises, purchased  for  the  joint  benefit  of  the  mortgagees,  should 
be  decreed  to  the  heirs  of  the  deceased  mortgagee ;  and,  as 
the  original  bill  by  the  joint  mortgagees  for  foreclosure  was 
not  yet  finally  determined,  this  decree  was  entered  on  that 
bill.2 

64.  Where  there  are  more  sureties  than  one,  to  whom  a 
mortgage  is  given  for  indemnity,  one  cannot  buy  the  land 
from  a  prior  mortgagee,  who  has  bought  it  under  a  decree 
enforcing  his  mortgage,  to  the  prejudice  of  the  other  sureties; 
but  they  shall  share  in  the  benefit  of  such  purchase.^ 

65.  A.  became  security  for  B.,  for  a  separate  debt  due  from 
B.,  and  for  B.  and  C,  for  other  debts  jointly  due  from  both. 
B.  executed  a  note  and  mortgage  to  A.,  to  secure  him  for  the 
whole  of  the  separate  debt,  and  for  B.'s  ratable  proportion  of 
the  joint  debts.  It  was,  at  the  same  time,  agreed,  that,  when 
B.  liad  paid  the  whole  of  the  first  debt,  and  a  moiety  of  each 

1  Moort  r.  Moberly,  7  B.  Mon.  299.  =*  Hilton  v.  Crist,  5  Dana,  384. 

2  Slcmmons  v.  Duncan,  y  B.  Mon. 
351. 


CH.  XIII.]  SUCCESSIVE   MORTGAGES,   ETC. 


;{57 


of  the  others,  the  note  and  mortgage  should  bv.  cancelled. 
B.  having  paid  the  amount  thus  stipulated  to  l^e  paiil  hv 
him  on  all  the  debts,  held,  A.  could  not  avail  hiuiscll  of  the 
note  and  mortgage  as  security  against  the  remainder,  and  :i 
bill  by  him  to  foreclose  was  dismissed  with  costs.' 

66.  A  mortgage  was  taken  from  A.  to  indemnify  B.,  who 
had  given  his  bond  for  a  loan  to  A.,  in  which  bond  C.  was 
bound  for  B.  The  mortgage  was  afterwards  assigned  abso- 
lutely by  B.  to  C,  the  same  to  be  at  C.'s  risk,  and  the  debt 
to  be  collected  at  his  expense.  Held,  that  C.  might  recover 
on  the  mortgage,  not  only  the  debt  and  interest  for  which  he 
was  bound,  but  the  reasonable  expenses  of  collection  ;  and 
that  the  Court  should  have  decided  the  amount  recoverable 
under  the  assignment,  as  matter  of  law  arising  on  the  assign- 
ment.''^ 

67.  A.,  being  the  principal  debtor  on  a  note,  assigned  to 
his  sureties  thereon  a  bond  and  mortgage,  with  the  condition 
that  they  should  pay  the  note,  and  afterwards  assigned  other 
property  to  trustees,  to  sell  the  same,  and  apply  the  proceeds 
to  the  payment  of  the  note,  and  the  residue,  if  any,  to  other 
certain  creditors  named.  Upon  a  creditor's  bill,  afterwards 
filed  against  A.,  held,  the  complainants  could  not  insist  that 
the  note  should  be  paid  out  of  the  fund  in  the  hands  of  the 
trustees,  so  as  to  give  them  the  benefit  of  the  bond  and 
mortgage  ;  but  the  bond  and  mortgage  were  the  primary 
fund  for  the  payment  of  the  note,  which  the  holders  were 
bound  first  to  exhaust,  before  resorting  to  the  fund  in  the 
hands  of  the  trustees,  so  as  to  give  the  other  creditors,  men- 
tioned in  the  assignment  to  trustees,  the  benefit  of  that  fund, 
the  complainant's  equity  being  subsequent  to  theirs.^ 

68.  Somewhat  analogous  to  the  case  of  successive  mort- 
gages, in  so  far  as  it  involves  the  change  of  a  single  liability 
and  charge  into  several  distinct  burden^  upon  the  sacne 
property,  is  that  of  a  conveyance  by  the  mortgagor  of  a  por- 
tion of  the  land  mortgaged,  retaining  the  reniaiiuU.'r  ;  or  the 
conveyance  of  different  portions,  included  in  one  mortgage, 

1  Newell  V.  Hurlburt,  2  Verm.  35.  ^  Besley  v.  Lawrence,  11  Paige,  581. 

^  Knox  V.  Moatz,  15  Penn.  74. 


358  THE    LAW    OF    MORTGAGES.  |CH.  Xlir. 

to    successive   purchasers ;    and    the   apportionment    of  the 
mortgage  debt  upon  such  parcels,  respectively. 

69.  By  way  of  general  introduction  to  the  rules  of  law  upon 
this  subject,  it  may  be  stated  as  "  a  well  settled  legal  doctrine, 
that  where  lands  are  charged  with  a  burden,  that  burden 
should  be  shared  equally.  Courts  of  equity  will  always  en- 
force this  rule,  either  upon  the  principle  of  contribution,  or  in 
some  other  mode  that  will  do  substantial  justice  between  the 
parties.  It  is  an  equally  well  settled  rule,  that  if  one  party 
has  deprived  the  other  of  his  right  to  enforce  a  contribution, 
or,  what  is  here  deemed  equivalent,  the  right  of  substitution 
in  place  of  the  mortgage,  he  will  be  excluded  from  so  much 
of  his  demand  as  the  party  might  have  enforced  but  for  the 
interference  of  him  who  has  thus  discharged  a  portion  of  the 
lien."  ^  And,  in  a  very  late  case,  the  same  general  rule  has 
been  stated  as  follows  : — "  Where  a  creditor  has  a  lien  upon 
two  funds  belonging  to  one  debtor,  and  another  creditor  has 
a  subsequent  lien  upon  only  one  of  them,  the  former  is  under 
obligation  to  exhaust  first  the  fund  upon  which  he  has  an 
exclusive  lien,  before  he  can  resort  to  the  other." ''^  (q)  "  It  is 
nothing  more  than  the  obvious  duty  so  to  use  one's  own  as 
not  to  injure  another.  K  the  paramount  creditor  resorts  to 
the  doubly  charged  fund  or  property,  the  junior  creditor  will 
be  substituted  to  his  rights,  and  will  be  satisfied  out  of  the 
other  fund  to  the  extent  to  which  his  own  may  have  been 
exhausted.  This  is  an  equity  against  the  debtor  himself, 
that  the  accidental  resort  of  the  paramount  creditor  to  the 
fund  doubly  encumbered,  shall  not  enable  him  to  get  back 

1  Per  I^owey,  J.    Parkman  v.  Welcli,         -  Per  Strong,  J.     Delaware,  &c.,  38 
I'J  Pick.  '2oS.     See  Kilborn  v.  Robbins,     Penn.  516. 
4  Allen,  8G<J. 

(7)  M.  mortgaged  three  lots  to  A.,  then  mortgaged  No.  1  to  B.,  then  sold 
No.  2  to  C.  Held,  that  B.  could  compel  A.  to  exhaust  No.  3  before  touch- 
ing No.  1,  but  that  Nos.  1  and  2  ought  to  contribute  equally  towards  A.'s 
ciaini,  as  the  equiiies  of  B.  and  C,  an  innocent  purchaser,  were  e(jual, 
though  if  No.  2  had  remained  in  M.'s  hands,  it  would  have  been  liable  in 
equity  before  No.  1.     lleilly  v.  Mayer,  1  Beasl.  55. 


CH.  XIII.]  SUCCESSIVE    MORTGAGES,    ETC.  359 

the  other  fund  discharged  of  both  debts.  And  liciii"-  an 
equity  against  the  debtor,  it  is  of  course  equally  such  against 
his  subsequent  judgment  creditors,  who  have  no  <ri('atcr 
rights  than  their  debtor  had  at  the  time  their  judo-nients 
were  entered."  ^ 

70.  Conformably  to  this  principle,  the  owner  of  a  part  of 
mortgaged  land  —  even  a  purchaser  by  parol  to  prevent  a 
sale  —  may  pay  the  mortgage,  and  claim  an  account  and  an 
assignment  of  the  mortgage,  or  to  be  subrogated  to  the 
mortgage  and  a  judgment  thereon.^  So  different  purchas- 
ers, having  equal  equities,  must  contribute  to  the  mortgage 
in  proportion  to  the  relative  value  of  their  shares.^  (r)  And 
neither  can  compel  more  than  this  by  obtaining  an  assif^n- 
ment  of  the  mortgage.^  Thus,  where  the  interest  of  a  part- 
owner  of  land  subject  to  a  joint  mortgage,  executed  before 
partition,  is  -sold  on  execution,  the  purchaser  may  be  com- 
pelled to  pay  the  whole  mortgage  debt  in  order  to  save  his 
property,  and  may  then  recover  one  half  from  the  other 
mortgagor.^ 

71.  Having  stated  these  general  principles  of  cquaHty  in 
bearing  the  burden  of  a  mortgage,  as  between  parties  inter- 
ested in  distinct  portions  of  the  property,  we  now  recur  to 
the  important  subject  suggested  above,  (s.  68,)  namely,  the 
respective  rights  and  liabilities  of  the  owners  of  ditferent 
estates  subject  to  one  mortgage.  Upon  this  point  the  gen- 
eral rule  is,  that,  if  the  mortgagor  conveys  a  part  of  the 
land,  retaining  the  rest,  more  especially  if  such  conveyance 

1  Per  Strong,  J.     Delaware,  &c.,  38  BeaU  v.  Barclay,  10  B.  Mon.  261;  Aiken 

Tenn.  516.  v.  Gale,  37  N.  H.  501. 

^  Salem  v.  Edgerly,  33  N.  H.  46  ;  ^  Ibid. 

Champlin  v.  Williams,  9  Barr.  341.  *  Stroud  v.  Casey,  27  Tenn.  4(1. 

3  Salem  v.  Edgerly,  33  N.  H.  46; 


(r)  It  is  held  that,  where  two  at  different  times  purchase  parcels  of  the 
mortgaged  premises,  tliey  should  bear  the  incumbrance  in  proportion  to  the 
value  of  their  respective  parcels,  unaffected  by  improvements  made  by  either 
party  thereon.     Bates  r.  Ruddick,  2  Clarke,  (Iowa)  423. 


360  THE    LAW    OF    MORTGAGES.  [CH.  XIII. 

contains  covenants  of  warranty ;  (s)  the  part  retained  is  pri- 
marily liable  for  the  mortgage  debt.  The  purchaser  becomes 
a  quasi  surety  for  such  debt.  If  the  mortgagor  retains  a 
part,  and  conveys  the  rest  to  different  purchasers,  the  part 
retained  is  primarily  liable,  and  the  portions  conveyed  are 
liable  in  the  inverse  order  of  their  alienation.  And  the  latter 
branch  of  the  rule  applies,  where  the  whole  land  is  succes- 
sively conveyed.^  (t) 

72.  The  doctrine  above  stated  is  of  ancient  origin.  In 
Herbert's  case  (3  Co.  11),  it  is  laid  down,  that,  if  one  is  seised 
of  three  acres  under  an  incumbrance,  and  enfeoffs  A.  of  one 
acre  and  B.  of  another,  and  the  third  acre  descends  to  the 
heir,  who  discharges  the  incumbrance ;  he  shall  not  have 
contribution,  "  for  he  sits  in  the  seat  of  his  ancestor." 

1  Ferguson  v.  Kimball,  3  Barb.  Ch.  Adams,  32  Maine,  63 ;  Shannon  r.  Mar- 

616  ;  Cusliing  v.  Ayer,  25  Maine,  383  ;  sellis,  Saxt.   413  ;  Britton  v.  Updike, 

Kellogg  V.  Rand,  11  Paige,  59;  Cum-  2  Green,  Ch.  125;  Wikoff  v.  Davis,  2 

ming    V.    Cumming,    3    Kelly,    460  ;  Green,   Ch.   224  ;    Porter   v.    Sealior, 

Knickerbacker  v.  Boutwell,  2  Sandf.  2   Root,   146  ;    Mayo  v.  Tompkins,   6 

Ch.  319 ;  Henkle  v.  Allstadt,  4  Gratt.  Munf.  520 ;  Black  v.  Morse,  3  Halst. 

284 ;  Skeel  v.  Spraker,  8  Paige,  182 ;  Ch.  509  ;    Howard,   &c.   v.    Halsey,  4 

Allen  V.  Clark,  17  Pick.  47  ;  Clowes  v.  Sandf.  565  ;   22  Barb.  54 ;  Lyman  v. 

Dickenson,  5  Johns.  Ch.  240;  Seahor  Lyman,  32  Verm.  79;  Byers  v.  Fow- 

r.  Robbins,  1   Root,  460 ;  Sheperd  v.  ler,  14  Ark.  86. 


(.s')  To  a  suit  upon  such  warranty  it  is  no  defence,  that  the  mortgagee 
had  obtained  a  decree  of  foreclosure  upon  the  part  conveyed.  Cheever  v. 
Fair,  5   Cal.  337. 

(<j  Where  one  person  has  two  mortgages  from  different  persons  on  dif- 
ferent estates,  and  another  person  has  a  mortgage  on  only  one  of  them, 
equity  will  not  compel  the  former  to  resort  first  to  the  fund  on  which  the 
latter  has  no  claim.  Woollen  v.  Hillen,  9  Gill,  185.  See  Herriman  r.  Skill- 
man,  33  Barb.  378. 

Mortgages,  successively  to  A.,  B.  and  C,  on  the  same  land,  except  seven- 
ty-five acres  not  included  in  B  's  deed.  Held,  as  against  A.  and  C,  B.  had 
a  right  to  have  A.'s  mortgage  satisfied  from  I  hat  part  of  the  land,  and  that 
C.  could  not  call  on  B.  to  contribute 7^/0  ixitd  to  payment  of  A.'s  mortgage. 
Conrad  v.  Harrison,  3  Leigh,  532.  Where  there  are  judgments  prior  to  a 
mortgage,  which  are  paid  from  a  sale  of  part  of  the  land,  the  mortgagee  may 
claim  an  assignment  of  such  judgments.  So,  although  he  took  a  judgment 
note  which  he  failed  to  enter  up,  and  paid  money  to  the  mortgagor  on  other 
accounts.     Delaware,  &c.,  38  Penn.  512. 


CH.  XIII.]  SUCCESSIVE   MORTGAGES,   ETC.  361 

73.  The  rule  in  question,  however,  finds,  its  chief  applica- 
tion as  between  parties  claiming  subject  to  the  mortgage. 
In  reference  to  the  mortgagee  himself,  it  is  said  to  be  so 
administered  as  to  throw  a  general  lien  upon  sucii  particu- 
lar  parcel,  as  will  give  a  mortgagee  the  benefit  of  his  prior- 
ity, either  upon  the  whole  or  a  part  of  the  land;^  and  Ihe 
mortgagor  is  held  still  to  remain  the  principal  debtor.'-^  The 
mortgagee  may  elect  between  the  portion  remaining  in  the 
mortgagor  and  that  conveyed  by  him,^  (u)  more  especially 
if  he  had  no  notice  of  the  conveyance.*  Thus,  where  one 
mortgage  was  made  upon  two  lots,  a  second  to  another 
person  upon  one,  and  a  third  to  another  person  upon  the 
other  ;  held,  the  first  mortgagee  could  not  be  compelled  by 
the  second  to  resort  first  to  the  lot  mortgaged  to  the  third ; 


1  Schry  ver  v.  Teller,  9  Paige,  173.  3  l^  Farge,  &c.  v.  Bell,  22  Barb.  54 ; 

'-  Marsh  v.  Pike,  1  Sandf.  Ch.  210 ;     Knowles  v.  Lawton,  18  Geo.  47G. 
10  Paige,  595.  *  Cheever  v.  Fair,  5  Cal.  337. 


(«)  Where  a  purchaser  of  land  mortgages  it  back  for  the  price,  and  also 
assigns  a  note  and  chattel  mortgage  for  further  security,  the  mortgagee  is 
not  obliged  first  to  resort  to  the  latter.     Davis  v.  llider,  5  Mich.  423. 

The  right  referred  to  in  the  text  is  said  to  be  not  a  legal  but  an  equitable 
right,  and  to  depend  upon  the  mortgagee's  having  notice  of  the  partial  alien- 
ation. La  Farge,  &c.  i'.  Bell,  22  Barb.  54  ;  4  Seld.  276.  So  it  is  held,  that 
the  right  of  a  purchaser  of  mortgaged  lands,  to  have  the  mortgage  satisfied 
by  the  sale  thereof  In  the  inverse  order  of  their  alienation,  arises  only  when 
the  mortgagee  releases  a  portion  without  notice,  or  what  is  equivalent  to 
notice,  that  another  portion  had  been  previously  sold  and  conveyed  by  the 
mortgagor.  Where  the  release  itself  refers  to  a  conveyance  of  a  part  of 
the  mortgaged  lands,  this  is  constructive  notice  of  sale  by  their  mortgagor. 
Booth  V.  Swezey,  4  Seld.  2  76. 

A  small  portion  of  mortgaged  premises  was  conveyed  to  A.,  and  the  mort- 
gage was  subsequently  foreclosed  by  advertisement,  without  notice  to  the 
grantee,  and  the  entire  premises  bid  off  by  the  assignee  of  the  mortgage  <br 
more  than  the  sum  due  on  the  mortgage,  and  the  excess  paid  to  the  mort- 
gagor. Held,  A.  was  entitled  to  have  the  value  of  the  larger  part  first 
applied  upon  the  mortgage,  and,  if  that  equalled  the  amount  due,  the  mort- 
gage would  be  deemed  satisfied  ;  if  not,  he  might  redeem  by  paying  the 
deficiency.     St.  John  v.  Bumpstead,  17  Barb.  100. 

VOL.    I.  31 


362  THE    LAAV    OF    MORTGAGES.  [CH.  XIII. 

but  should  be  paid  from  the  proceeds  of  both  lots,  in  pro- 
portion to  the  amount  produced  by  each.' 

74.  Where  the  purchaser  of  mortgaged  land  assumes  in 
the  deed,  or  covenants,  to  pay  the  mortgage,  especially  if  the 
amount  is  deducted  from  the  price,  he  is  liable  to  pay  the 
amount  of  it  to  the  grantor,  as  part  of  the  price  ;  as  be- 
tween them,  the  mortgagor  becomes  a  surety  in  respect  to 
the  mortgage  ;  (v)  and  at  maturity  the  purchaser  may  be 

1  Green  v.  Kamage,  18  Ohio,  428. 


(u)  Although  the  language  is  used  "  07i  condition  that  said,  &c.,  shall  assume 
and  pay  said  note,"  &c. ;  yet  the  grantor,  after  paying  the  interest,  may  re- 
cover it  from  the  grantee.  He  is  not  bound  to  claim  a  forfeiture  of  the  laud  ; 
although  he  might  do  so  at  his  election.  And  the  promise  is  not  void,  as 
being  within  the  statute  of  frauds  —  being  a  promise  to  pay  the  debt  of  an- 
other, or  concerning  real  estate.  Although  the  consideration  is  a  convey- 
ance of  land,  it  is  past  and  executed,  and  the  promise  is  a  simple  obligation 
to  pay  money.  And  the  substance  of  the  contract  is  tvith  the  plalnliff,  on  a 
consideration  moving  from  him,  to  pay  his  debt,  although  the  performance 
of  it  would  satisfy  the  debt  of  another.  Moreover,  implied  promises  are  not 
•within  the  statute.  Pike  v.  Brown,  7  Cush.  133.  And  the  rule  is  the  same, 
whenever  the  land  is  conveyed  subject  to  the  mortgage,  generally.  Town- 
send  V.  Ward,  27  Conn.  610.  If  the  gi-antee  signs  the  deed,  he  is  liable  in 
covenant;  otherwise,  in  assumpsit.  Rawson  v.  Copeland,  2  Sandf  Ch.  251. 
The  grantor  may  enforce  the  liability,  without  actually  paying  the  mortgage 
debt  himself.     Ibid. 

It  has  been  recently  held  in  Massachusetts,  that  the  principle  of  law,  by 
which,  in  some  cases,  an  action  has  been  maintained  by  one  party,  upon  a 
simple  contract  made  by  the  defendant  with  another  to  do  an  act  for  the 
benefit  of  the  plaintiff,  does  not  apply,  in  case  of  a  promise  made  to  the  ven- 
dor by  the  purchaser  of  an  equity  of  redemption,  to  assume  and  cancel  the 
mortgage  with  the  mortgage  note ;  and  that  the  mortgagee  cannot  maintain 
an  action  upon  such  promise.  Mr.  Justice  Metcalf  reviews  the  cases  in 
which  such  a  principle  has  been  sanctioned  by  the  Courts,  and  comes  to  the 
conclusion,  that  ihey  constitute  exceptions  to  the  general  rule  on  the  sub- 
ject, none  of  which  embraced  the  case  before  the  Court.  Mellen  v.  Whip- 
ple, 1  Gray,  317.  More  especially  does  this  rule  apply,  where  it  does  not 
appear  that  the  grantor  is  personally  liable  for  the  mortgage  debt.  King  i'. 
Whitely,  10  Paige,  4G5  ;  Stevenson  o.  Black,  Saxt.  338;  Tichcnor  v.  Dodd, 
3  Green,  Ch.  454.  Even  a  guardian  is  held  personally  bound,  where  he 
purchases  a  mortgaged  estate  subject  to  payment  of  the  mortgage  debt. 
Woodward's,  &c.,  38  Penn.  322. 


OH.  XIII.]  SUCCESSIVE   MORTGAGES,   ETC.  3(58 

compelled  to  pay  it.  So  a  subsequent  purchaser  from  him. 
As  between  him  and  the  vendor  he  makes  the  debt  his  own. 
But,  the  vendor  still  remaining  liable  to  the  mortgagee,  the 
relationship  of  principal  and  surety  arises  between  the  vvn- 
dor  and  purchaser,  and  may  be  illustrated  by  the  analogous 
case  of  an  undertaking  by  one  partner  to  pay  the  debts  of  a 
dissolved  partnership.  Such  debts  are  thereafter  regarded  in 
equity,  between  the  partners,  as  the  debts  of  the  undertaking 
party;  and  the  continuing  liability  of  the  others  is,  in  the 
same  point  of  view,  a  liability  for  the  debt  of  another.^  A 
second  grantee,  taking  the  land  from  such  purchaser,  and 
the  holder  of  the  other  part  of  the  land,  may  claim  an  as- 
signment of  the  mortgage  to  protect  his  rights.^  Bnt  one 
purchasing  subject  to  a  mortgage  may  still  make  any  legal 
defence  to  a  suit  thereupon.^ 

75.  Where  a  mortgagor  conveys  distinct  portions  of  the 
land  to  two  successive  purchasers,  the  last  of  whom  reserves 
enough  of  the  price  to  pay  the  mortgage,  and  expressly  for 
that  purpose ;  and  such  second  purchaser  accordingly  pays 
the  mortgage  debt,  taking  a  quitclaim  deed  from  the  mort- 
gagee :  this  is  a  redemption  of  the  mortgage  as  to  the  first 
purchaser.^ 

76.  Where  a  part  of  land  mortgaged  is  sold,  and  an  agree- 
ment to  pay  the  mortgage  contained  in  the  deed,  a  purchaser 
from  such  grantee  is  chargeable  with  notice  of  the  agree- 
ment, and  takes  subject  thereto ;  and  if  such  purchaser  buy 
the  original  mortgage,  it  is  thereby  discharged.^ 

77.  If  the  purchaser  of  a  portion  of  the  land  agrees  with 
the  mortgagor,  that  this  portion  shall  remain  subject  to  the 
lien,  and  this  agreement  makes  a  part  of  the  consideration  ; 
equity  will  not  decree  that  the  portion  retained  by  the  mort- 
gagor shall  be  first  sold ;  even  in  favor  of  a  purchaser  from 
the  first  purchaser,  having  notice  of  the  agreement.^ 

1  Blyer  v.  Monholland,  2  Sandf.  Cha.  ^  Haisey  v.  Reed,  9  Paitre,  44G. 

478 ;  Ferris  v.  Crawford,  2  Deiiio,  595 ;  ^  KusscU  v.  Keiiney,  1  Sundf.  Cli.  34. 

Morris  v.  Oakford,  9  Barr,  499,  500 ;  *  Gushing  r.  Aycr,  25  Maine,  383. 

Flagg  V.  Thurber,  14  Barb.  196;  An-  ^  Russell  v.  Pistor,  3  Seld.  1/1. 

drews  v.  Wolcott,  16  Barb.  21 ;  Marsh  "  Engle  v.  Haines,  1  Ilalst.  Cha.  ISG; 

V.  Pike,  1  Sandf.  Ch.  210 ;  10  Paige,  Ross  v.  Haines,  Ibid.  632. 
595.     See  Dutton  v.  Ives,  5  Mich.  515. 


364  THE   LAW   OF  MORTGAGES.  [CH.   XIII. 

78.  Where  a  purchaser  of  one  of  two  mortgaged  lots  agrees 
to  pay  the  mortgage  ;  a  subsequent  purchaser  of  the  other 
has  a  right  to  the  fulfilment  of  this  contract,  notwithstanding 
an  agreement  between  the  vendor  and  the  first  purchaser, 
subsequent  to  the  second  sale,  to  vary  such  original  bargain.^ 

79.  Two  persons  having  bought  land  subject  to  a  mort- 
gage, which  they  assumed  to  pay,  one  sold  his  share  to  the 
other,  who  agreed  to  pay  the  mortgage,  and  gave  a  bond  of 
indemnity  against  it.  Held,  the  seller  might  in  equity  en- 
force such  agreement,  or  himself  pay  the  debt,  take  an  as- 
signment of  it,  and  file  a  bill  to  foreclose'  Also  that  the 
defendant  was  estopped  to  set  up  a  payment  made  by  the 
plaintiff  before  he  parted  with  his  interest.^ 

80.  If  a  mortgagor  convey  one  of  two  parcels  included  in 
the  mortgage,  taking  back  a  mortgage  for  the  price,  and, 
while  this  is  unpaid,  convey  the  other  parcel  to  another  pur- 
chaser, and  then  become  insolvent;  if  the  first  grantee  will 
not  contribute  to  redeem  both  parcels  from  the  original  mort- 
gage, the  second,  upon  paying  the  whole  debt,  may  claim 
an  assignment  of  that  mortgage,  and  thus  enforce  contri 
bution.^ 

81.  A  mortgagor  of  two  tracts  of  land  conveyed  one  to 
the  plaintiff  and  the  other  to  A.,  who  assumed  the  mortgage- 
debt.  A.  failed  to  pay  the  debt,  but  conveyed,  by  quitclaim, 
to  B.,  who  verbally  agreed  to  pay  the  mortgage.  After  pos- 
session taken  for  foreclosure,  B.  took  an  assignment  of  the 
mortgage,  three  years  having  expired,  and  sold  the  A.  tract 
to  C,  and  the  plaintiff's  tract  to  D.  Without  notice,  the 
plaintiff  brings  a  bill  in  equity  against  B.  and  D.,  praying  for 
a  conveyance  of  the  land  to  him.  Held,  the  bill  could  not 
be  maintained.* 

82.  Where  that  portion  of  the  land  conveyed  by  the  mort- 
gagor is  to  be  only  secondarily  liable  for  the  mortgage  debt, 
the  relation  of  principal  and  surety  is  reversed  from  that 
above  stated.     Thus  A.  purchased  of  B.  one  of  several  par- 

1  Barinf?  i'.  Moore,  4  Paige,  166.  **  Allen  v.  Clark,  17  Pick.  47. 

^  Cornell  v.  Prescott,  2  Barb.  16.  *  Shaw  v.  Gray,  23  Maine,  174. 


CH.  XIII.]  SUCCESSIVE  MORTGAGES,   ETC.  365 

eels  of  mortgaged  land.  B.  became  insolvent,  and  made  an 
assignment  of  his  property,  in  trust  for  the  payment  of  his 
debts,  the  lands  assigned  being  first  chargeable  with  tlie  pay- 
ment of  the  mortgage,  but  imperfect  security  therefor,  and 
A.'s  parcel  being  chargeable,  in  case  the  land  assigned  should 
prove  insufficient.  Held,  A.  was  in  legal  effect  surety  for 
the  land  assigned,  that,  when  sold  upon  foreclosure  of  the 
mortgage,  it  should  satisfy  the  mortgage ;  and  that  he  had  a 
right  to  see  that  the  principal  fund  was  not  impaired  by  any 
waste  on  the  part  of  the  assignees.^  (iv) 

83.  Where  real  estate,  subject  to  mortgage,  is  owned  by 
several  persons,  and  the  interest  of  one  sold  at  sheriff's  sale, 
the  purchaser  is  not  thereby  personally  chargeable  with  a 
proportion  of  the  mortgage  debt,  to  one  of  the  original  own- 
ers who  paid  it  after  the  sale,  in  the  absence  of  proof  that 
he  was  permitted  to  become  the  purchaser,  on  the  condition 
of  his  assuming  such  responsibility.  His  mere  declarations, 
made  either  before  or  after  the  sale,  that  he  was  bound  to 
pay  part  of  the  said  mortgage  debt,  are  too  slight  to  create 
such  a  liability,  without  proof  of  consideration  for  the  prom- 
ise, and  especially  if  made  after  his  interest  in  the  property 
had  ceased,  by  reason  of  the  sale  of  the  same  on  a  prior 
mortgage.'^ 

84.  Where  mortgaged  land  is  sold  on  execution  against 
the  mortgagor,  as  between  him  and  the  purchaser,  it  becomes 
the  primary  fund  for  payment  of  the  mortgage.^  In  such 
case,  the  mortgagor's  personal  liability  becomes  separated 
from  the  ownership  of  the  land,  and  from  the  remedy  upon 
the  mortgage  against  the  land.  And  a  judgment  in  favor  of 
the  mortgagor,  in  a  suit  brought  upon  the  bond  after  such 

1  Johnson  v.  White,  11  Barb.  194.  ^  Weaver  v.  Toogood,  1  Barb.  238. 

^  Wager  v.  Cliew,  15  Penn.  323. 


(w)  In  New  York  it  is  held,  that,  if  a  deficiency  exists,  on  foreclosure,  tbe 
mortgagee  may  recover  it  from  the  grantee  of  a  part  of  the  laud  mortgaged. 
Halsey  v.  Reed,  9  Paige,  446. 
31* 


366  THE   LAW    OF   MORTGAGES.  [CH.  XIII. 

sale,  could  not  be  pleaded  by  the  purchaser  of  the  mortgaged 
premises,  by  way  of  estoppel,  in  bar  of  a  suit  for  foreclosure.^ 

85.  In  Gill  V.  Lyon,^  the  defendant  was  a  purchaser  from 
the  mortgagor  of  part  of  the  land  mortgaged,  and  had  paid 
the  full  value  of  the  land,  and  took  a  deed  with  covenants  of 
seisin  and  freedom  from  incumbrances.  After  this  convey- 
ance, the  plaintifl'  bought  the  rest  of  the  land,  at  a  sale  on  a 
judgment  against  the  mortgagor.  Held,  the  defendant  was 
not  bound  to  contribute  towards  redeeming  the  mortgage, 
because  the  parties  were  not  on  an  equal  footing  in  equity. 

86.  So  where  there  are  two  mortgages  upon  the  same 
property,  and  the  holder  of  the  prior  mortgage  forecloses, 
and  purchases  in  the  property,  the  presumption  is,  that  he 
bids  only  to  the  value  of  the  equity  of  redemption  ;  and 
thenceforth  the  land  becomes  the  primary  fund  for  payment 
of  the  debt  secured  by  the  senior  mortgage.^  (x) 

87.  So  where  a  mortgagee  recovers  judgment  on  the  debt, 
and  the  mortgagor  afterwards  conveys  land  not  included  in 
the  mortgage,  and  subject  to  the  lien  of  the  judgment ;  the 
grantee  may  in  equity  oblige  the  mortgagee  to  apply  the 
mortgaged  premises  first  to  his  debt.^  (t/) 

1  Heyer  v.  Pruvn,  7  Paige,  465.  ^  Mathews  r.  Aikiii,  1  Comst.  695. 

2  1  Johns.  Ch.  447.  *  Weaver  v.  Toogood,  ]  Barb.  238. 

(x)  A  mortgage  was  made  of  an  interest  in  certain  mills,  to  secure  $4,000, 
and  a  conveyance  of  other  land  to  the  mortgagee,  absolute  in  form,  but  in 
fact  as  security  for  S6,000.  The  mortgagee  assigned  the  mortgage  and 
conveyed  the  land  to  the  same  person,  with  notice  of  the  prior  transaction. 
The  grantee  foreclosed  the  mortgage,  and  upon  the  sale  purchased  the  mills, 
and  afterwards  mortgaged  the  whole  property  to  the  first  mortgagee  for 
$10,000.  Held,  the  last  mortgage  was  an  equitable  lien  on  the  land  only 
for  S6,000  and  interest,  deducting  the  rents  and  profits.  Williams  v.  Thorn, 
11  Paige,  459. 

(y)  Upon  this  subject,  the  following  points  have  been  recently  settled  in 
Kentucky.  Where  land  and  slaves  are  included  in  a  mortgage,  and  parts 
of  the  property  sold  to  different  persons ;  in  equalizing  the  burden  among 
the  purchasers,  the  equitable  course  is  to  apportion  it  according  to  the  values 
at  the  time  of  foreclosure  ;  but  not  to  take  into  consideration  improvements 
bona  fitle  made  by  the  purchasers.     Dickey  v.  Thompson,  8  B.  Mon.  312. 


CH.  XIII.]  SUCCESSIVE   MORTGAGES,   ETC.  867 

88.  It  is  said,  that  a  mortgagee,  with  notice  of  subsequent 
liens,  has  no  right  to  release  his  mortgage,  to  the  prejudice 
of  such  liens.i  (2)  Upon  this  principle  it  has  been  held,  that 
if  the  mortgagee,  for  a  consideration,  releases  that  portion  of 
the  land  which  was  primarily  liable  for  the  debt,  he  thereby 
discharges  the  other  portion.^  So,  if  two  estates  be  mort- 
gaged in  one  deed,  and  transferred  to  different  persons,  and 
one  released  by  the  mortgagee ;  the  owner  of  the  other,  on 
redeeming,  cannot  compel  contribution,  but  may  claim  a 
deduction  from  the  debt  in  proportion  to  the  value  of  the 
parcel  released.^  And  it  is  held  that  a  mortgagee  cannot 
release  a  part  of  the  premises  mortgaged  to  him,  and  throw 
the  whole  burden  upon  the  remaining  part,  if  the  remaining 
part  has  been  subsequently  mortgaged  to  another  whose 
mortgage  has  been  recorded,  though  the  first  mortgagee  had 
not  actual  notice  of  the  second  mortgage.'* 

89.  But,  on  the  other  hand,  it  is  said,  the  rule  of  charging 
different  parcels  of  land,  subject  to  a  common  incumbrance, 
in  the  inverse  order  of  their  alienation,  is  a  mere  rule  of 
equity ;  and,  as  a  release  to  a  subsequent  purchaser,  of 
one  parcel  of  the  land,  is  not  a  technical  discharge  of  the 

1  McLean  v.  Lafayette,  &c.,  3  McL.  ^  Parkman  v.  Welcli,  19  Pick.  238, 
587  ;  La  Farge,  &c.  v.  Bell,  22  Barb.  54.         ■»  Johnson  r.  Johnson,  4  Ilalst.  Ch. 

'^  Paxton    V.  Harrier,    11   Penn.    (1     561. 
Jones)  312.    But  see  Holnaan  v.  Bank, 
&c.,  12  Ala.  369. 

Where  a  mortgagor  sells  part  of  the  property,  agreeing  to  pay  the  mortgage, 
it  shall  first  be  paid  from  the  part  which  he  retains,  if  any,  before  calling 
upon  the  purchaser  of  another  part.  Ibid. ;  ace.  Cunmiing  r.  Cunnning,  3 
Kelly,  460.  Where  parcels  of  land,  belonging  to  different  purchasers, 
are  charged  with  an  incumbrance,  each  should  bear  its  proportion  thereof, 
according  to  its  value,  if  each  purchaser  paid  a  full  price,  expected  to  hold 
the  land  clear,  and  made  no  engagement  to  pay  the  incuuibrance.  The 
burden  cannot  be  thrown  wholly  upon  the  purchaser  of  the  hist  lot.     Ibid. 

(z)  In  Delaware,  the  release  by  the  mortgagee  or  his  assigns,  executed  at 
the  instance  of  the  mortgagor,  his  heirs  or  assigns,  of  any  part  of  tlic  mort- 
gaged premises,  shall  not  operate  as  a  discharge  of  any  other  part.  Every 
such  release  shall  be  under  hand  and  seal,  acknowledged  like  other  deeds, 
and  recorded  within  sixty  days.     Laws  of  Delaware,  1859,  698. 


368  THE   LAW   OF   MORTGAGES.  [CH.  XIII. 

lands  previously  conveyed  from  the  incumbrance,  it  is  not 
an  equitable  release,  except  where  it  ought  so  to  operate 
upon  equitable  principles.^  Thus,  where  a  purchaser  of  part 
of  land  mortgaged  paid  the  price  to  the  mortgagee,  taking  a 
release  of  his  land  from  the  mortgage ;  held,  that  parts  of  the 
land  previously  sold  were  not  discharged.^  More  especially 
where  a  mortgagee,  whose  mortgage  covers  two  parcels  of 
land,  subsequently  conveyed  by  the  mortgagor  to  different 
purchasers,  releases  the  parcel  last  conveyed  from  the  mort- 
gage, without  any  notice,  actual  or  constructive,  that  the 
other  parcel  had  been  previously  sold ;  he  does  not  thereby 
discharge  the  parcel  not  released.'^  So,  where  the  owner  of 
mortgaged  property  conveyed  a  portion  of  it,  received  the 
price,  and  afterwards  sold  the  remainder  for  the  full  value  to 
another  person,  under  an  agreement  that  the  purchase-money 
should  all  be  applied  upon  the  mortgage,  and  the  land  re- 
leased therefrom  ;  and  the  mortgagee  accordingly  released 
it ;  held,  such  release  did  not  discharge  the  portion  first  con- 
veyed from  the  lien  of  the  mortgage  for  the  balance  of  the 
debt.* 

90.  The  recording  of  his  deed,  by  a  grantee  from  the  mort- 
gagor, is  held  no  notice  to  the  -mortgagee  of  the  existence  of 
such  deed,  so  as  to  exempt  the  land  granted  from  liability  for 
the  mortgage  debt,  by  reason  of  a  release  of  the  land  prima- 
rily liable.^  And  more  especially  where  the  act,  making  the 
record  of  conveyances  notice,  is  limited  by  its  terms,  in  its 
operation,  to  subsequent  purchasers  and  mortgagees.  And 
though  the  act  imports  notice  to  prior  purchasers  or  mortga- 
gees, it  is  but  constructive  notice,  and  insufficient  to  charge 
a  prior  mortgagee  with  fraud,  in  releasing  portions  of  the 
mortgaged  premises  (of  which  part  had  been  sold  after 
the  mortgage,  but  before  his  releases),  retaining  a  lien  on 
the  balance,  so  as  to  justify  relief  in  a  court  of  equity.^ 
And  searches  made  by  a  solicitor,  with  a  view  to  foreclose  a 

1  Patty  V.  Pease,  b  Paige,  277.     See        *  Patty  v.  Pease,  8  Paige,  277. 
Lyman  c.  Lyman,  32  Verm.  79.  ^  4  Sandf.  oG5. 

-  Evertson  v.  Ogden,  8  Paige,  275.  ^  Dennis  v.  Burritt,  6  Cal.  670. 

8  8  Paige,  277  ;  Stuyvesant  v.  Hall, 
2  Barb.  Clia.  151, 


CH.  Xlll.]  SUCCESSIVE   MORTGAGES,   ETC.  369 

mortgage,  which  proceeding  was  abandoned  after  a  bill  was 
prepared,  but  before  it  was  filed,  are  not  evidence  of  notice 
to  the  mortgagee  of  the  facts  which  they  disclosed.^ 

91.  But  where  a  release  of  mortgaged  premises  described 
a  part  of  the  lands  released,  by  reference  to  a  deed  to  the  re- 
leasee, which  bounded  the  land  upon  "  land  now  or  late  of 
W.,"  and  "  along  said  W.'s  land  ; "  held,  notice  to  the  mort- 
gagee, that  W.  was  or  had  been  the  owner  of  such  adjoining 
lands.  And  such  lands  being  a  part  of  the  mortgaged 
premises,  and  having  been  conveyed  by  the  mortgagor  to 
W.,  long  before  the  execution  of  the  release  ;  held,  the  mort- 
gagee was  chargeable  with  notice  of  such  conveyance,  and 
must  account  for  the  value  of  the  released  premises  in  dis- 
charge of  the  mortgage  debt,  as  between  himself  and  W.'s 
grantees.^ 

92.  Where  the  part  last  conveyed  was  equal  in  value  to 
the  debt,  and  the  purchaser  bought  in  the  mortgage  debt, 
took  an  assignment  of  the  mortgage,  and  foreclosed  the 
same,  and  then,  under  a  claim  of  title  to  the  whole  tract, 
released  to  the  purchaser  of  the  first  sold  portion  his,  the  as- 
signee's, right  in  this  portion,  upon  being  paid  therefor ;  held, 
the  releasee  could  not,  at  law,  recover  back  the  money, 
though  paid  under  a  belief  that  the  releasor  had  title  to  the 
whole  tract.  Whatever  be  the  right  of  the  releasee,  his  rem- 
edy is  in  equity  alone.^ 

93.  When  a  mortgagee  has  released  land  primarily  liable, 
to  the  prejudice  of  another  mortgagee  of  a  part  only  of  the 
lands  embraced  in  the  first  mortgage,  equity  may  prevent  the 
first  mortgagee  from  enforcing  his  mortgage  upon  the  portion 
of  lands  common  to  both  mortgages,  unless  he  deducts  from 
the  debt  the  value  of  the  land  released.  But  he  must  have 
knowingly  and  wilfully  prejudiced  the  other  mortgagee's 
rights;  and  a  record  of  the  second  mortgage  is  not  legal 
notice.* 

94.  A.  mortgaged   certain  property  to  B.,  and  others,  to 

1  Howard,  &c.  v.  Halsey,  4  Sandf.        ^  Ibid.  ,.  ,ia 
565.                                                                  *  Blair  v.  Ward,  2  Stockt.  119. 

2  Ibid. 


370  THE   LAW   OF   MORTGAGES.  [CII.  XIII, 

secure  debts  due  them  by  him,  and  at  the  same  time  A.  and 
his  wife  C.  mortgaged  to  them  property  belonging  to  C.  in 
her  own  right,  from  her  father's  estate,  as  a  further  security 
for  A.'s  debts  to  B.  C.  died  before  partition  of  her  father's 
estate,  and  her  port'jn  was  attached  by  the  committee  of 
partition  to  her  son  D.  These  mortgages  were  recorded 
May  3d,  1837.  On  February  12,  1839,  B.  and  his  co-mort- 
gagees released  a  portion  of  C.'s  property  covered  by  the 
mortgage,  but  this  release  was  not  recorded  until  January 
16,  1840.  In  February,  1839,  A.,  as  guardian  of  D.,  con- 
veyed to  the  co-mortgagees  with  B.,  but  without  prejudice 
to  B.'s  rights,  a  part  of  D.'s  estate  in  satisfaction  of  their 
interest  in  the  mortgage  ;  and,  in  December,  1840,  they  re- 
leased to  A.  all  their  title  and  interest,  without  prejudice  to 
B.'s  rights.  July  10,  1839,  A.  mortgaged,  as  guardian  of  D., 
and  by  authority  properly  obtained,  a  part  of  D.'s  estate  to 
E.,  which  mortgage  was  recorded  July  19,  1839.  February 
6,  1840,  B.  bought  from  A.  his  equity  of  redemption  in  the 
estate  covered  by  his  first  individual  mortgage,  whereby,  as 

B.  admitted  in  his  pleadings,  his  estate  as  mortgagee  was 
merged  in  the  fee-simple.  B.  brought  his  bill  to  foreclose 
his  mortgage  on  the  estate  of  C,  which  had  descended  to  D. 
E.  filed  a  cross-bill,  to  exempt  the  lot  mortgaged  to  him  by 
A.,  as  guardian  of  D.  from  liability  to  B.,  and  alleged  that 
he  had  no  notice,  when  he  took  the  mortgage  of  the  release 
of  a  part  of  C.'s  property  from  the  mortgage.  Held,  the 
record  of  the  second  mortgage  to  E.  was  not  constructive 
notice  to  B.  and  his  co-mortgagees,  so  as  to  affect  their  right 
to  proceed  against  the  remainder  of  the  premises,  which  was 
left  covered  by  the  mortgage  after  the  release  of  a  part  to 

C,  but,  as  C.  was  to  be  regarded  as  a  surety  for  A.,  in 
her  mortgage  with  him  to  B.  that  he  was  obliged  first  to 
proceed  against  the  primary  fund,  which  in  this  case  was 
A.'s  property,  and,  as  he  had  purchased  A.'s  equity  of  re- 
demption therein,-  he  must  first  deduct  the  price  at  which  he 
took  A.'s  property  from  the  mortgage-debt,  and  then,  if  there 
was  a  balance  due,  he  could  proceed  against  the  surety's 


CH.  XIII.]  SUCCESSIVE   MORTGAGES,   ETC.  871 

property.  As  the  mortgage-debt  was  more  than  extinguished 
by  A.'s  property,  B.'s  bill  was  dismissed  with  costs,  and  the 
property  was  decreed  to  be  sold  by  a  decree  under  Ihe  cross- 
bill to  satisfy  E.'s  mortgage,^ 

95.  A  mortgage  was  made  of  twenty-seven  acres,  and 
another  of  ten  acres,  part  of  the  land  previously  mortgaged. 
The  latter  was  sold  by  the  second  mortgagee,  and  released 
by  the  first.  The  mortgagor  then  sold  three  acres  of  the  re- 
maining seventeen,  by  a  warranty  deed.  Held,  an  assignee 
of  the  first  mortgage  could  not  sell  the  three  acres,  until  he 
had  sold  the  fourteen  not  released,  and  then  only  for  the 
deficiency.^ 

96.  The  assignment  of  a  security  to  the  owner  of  one 
parcel  of  land  upon  which  it  is  an  equitable  lien,  for  the 
purpose  of  enabling  the  assignee  to  obtain  payment  from 
another  parcel,  which  in  equity  is  primarily  liable  ;  operates 
as  a  merger  of  the  lien  in  equity  only  as  to  the  lands  prima- 
rily chargeable.^ 

97.  It  has  been  held  in  Vermont,  if  several  parcels  are 
mortgaged  for  one  debt,  and  a  third  person  becomes  inter- 
ested in  one  of  them,  from  necessity,  or  otherwise  than  in 
the  way  of  voluntary  speculation  ;  that  he  may  either  require 
of  the  mortgagee  an  equitable  apportionment  of  the  debt,  or 
an  assignment  of  the  mortgage  on  payment  of  it ;  in  either 
case,  reference  being  had  to  such  property  only  as  was  equi- 
tably chargeable,  w^here  he  became  interested  in  the  property.* 
But  this  rule  has  been  since  questioned,  and  it  has  been 
held,  that,  in  case  of  mortgages  of  several  tracts,  the  mort- 
gage is  to  be  apportioned  upon  the  land  according  to  value, 
and  each  owner  to  have  a  certain  time  for  redeeming  his 
part,  or  to  be  foreclosed.  If  one  only  redeems,  he  must  also 
redeem  the  other  part,  or  forfeit  the  whole.  K  he  redeems 
the  whole,  he  takes  it  himself.^ 

98.  Where  some  of  the  defendants  in  their  answers  insist 

1  Wheelwright  v.  Loomer,  4  Edw.        »  skeel  v.  Spraker  8  r.aige,  182 

CIj  2^9  *  Honie  v.  Chittenden,  1  Venn.  28. 

■^  Meyey,  4  Barr,  80,  ^  Gates  v.  Adams,  24  Verm.  70. 


372  THE   LAW   OF   MORTGAGES.  [CH.  XIIL 

that  the  estates  of  others  shall  be  first  charged  with  the 
debt,  and  the  latter  are  defaulted  ;  the  court  will  not  deter- 
mine the  order  of  sale,  but  direct  the  master  to  sell  in  inverse 
order,  and  conformably  to  equity,^ 

99.  A  mortgagor  of  several  lots  sold  one  of  them.  The 
assignees  of  the  mortgage  brought  a  bill  to  foreclose,  making 
all  incumbrancers  parties  except  the  purchaser  of  this  lot. 
A  sale  was  decreed,  and  the  lot  was  sold,  and  bought  by 
one  of  the  assignees,  and  the  price  nearly  satisfied  the  mort- 
gage. The  assignee  brings  ejectment  for  the  lot,  and  recov- 
ers judgment.  The  purchaser  of  the  lot  then  brings  a  bill  to 
redeem,  in  payment  of  the  balance  of  the  mortgage.  Held, 
he  must  also  pay  the  price  paid  for  the  lot.^ 

100.  The  following  case  illusti-ates  the  several  points  above 
considered,  as  to  the  respective  rights  of  the  various  parties 
interested  in  a  mortgaged  estate.  January  1,  1817,  a  mort- 
gage was  made  by  one  of  the  defendants  to  the  plaintiff  to 
secure  a  note  for  $1,116.  The  other  defendant  purchased 
the  right  of  redemption,  and  filed  a  bill,  setting  forth  that 
the  mortgage  included  two  lots  of  land,  of  very  different 
values ;  that  lot  No.  1,  being  the  less  valuable  one,  had  been 
sold  to  him  in  November,  1821,  upon  an  execution  against 
the  other  defendant,  and  himself,  as  security  for  the  other  de- 
fendant, for  $175  ;  and  praying  that  the  mortgage  debt  due  to 
the  plaintiff  might  be  apportioned  between  the  lots  according 
to  their  comparative  values,  and  lot  No.  1  discharged  from 
the  mortgage  upon  payment  of  the  amount  thus  charged 
upon  it ;  or  that  the  plaintiff  might  be  decreed  to  accept  his 
debt  from  the  purchaser,  and  assign  the  mortgage  to  him. 
It  appeared  that  in  July,  1821,  the  mortgagor  sold  No.  2,  the 
plaintiff  verbally  promising  to  release  it  from  the  mortgage. 
In  February,  1822,  after  the  purchase  of  No.  1,  the  plaintiff, 
without  consideration,  accordingly  made  a  release.  Upon  a 
bill  in  equity  to  foreclose,  brought  by  the  mortgagee  against 
the  mortgagor  and  purchaser,  held,  the  case  was  not  one 

1  Rathbone  v.  Clark,  9  Paige,  648.  -^  Gliddou  v.  Andrews,  14  Ala.  783. 


CH.  Xlir.]  SUCCESSIVE   MORTGAGES,    ETC.  37{} 

where  the  purchaser,  as  a  party  interested  in  one  of  two 
mortgaged  estates,  might  by  the  aid  of  a  court  of  (•(juity 
throw  the  burden  upon  the  other,  because  the  plaintilV's  in- 
terest would  be  thereby  affected  ;  but  that  the  purchaser  was 
entitled  to  relief,  either  by  paying  the  mortgagee  his  debt, 
and  taking  a  conveyance  of  all  the  property  subject  to  the 
incumbrance  ;  or  by  paying  such  proportion  of  the  debt,  as 
the  value  of  his  purchase  bore  to  that  of  the  whole  property  ; 
that  the  Court  were  bound  to  regard  the  equitable  situation 
of  the  property  at  the  time  of  the  purchase,  taking  into  view 
the  mortgagee's  verbal  agreement  to  release  a  part  of  it,  as 
any  other  course  would  be  punishing  him  for  the  benevolent 
act  of  relinquishing  a  part  of  his  security  ;  and  that  the  pur- 
chaser, not  being  a  mere  speculator  or  volunteer,  but  having 
purchased  by  reason  of  having  been  bail  for  the  mortgagor, 
was  entitled  to  the  privilege,  which  the  mortgagee  would 
otherwise  have  had,  of  electing  between  the  two  modes  of 
relief  above  specified.^ 

1  Chittenden  v.  Barney,  1  Verm.  28. 


VOL.   I. 


374  THE   LAW    OF   MORTGAGES.  [CH.   XIV. 


CHAPTER  XIV. 

FROM  WHAT  FUND  A  MORTGAGE  SHALL  BE  PAID,  UPON  THE 
DEATH  OF  THE  MORTGAGOR. 

1.  General  nature  of  the  subject — 1  ment  of  a  mortgage  —  decided  cases  — 
general  rules  as  to  the  fund  for  pay-  |  miscellaneous  points  and  decisions. 

1.  Having  treated,  in  the  several  preceding  chapters,  of  the 
respective  titles  and  interests  of  mortgagor  and  mortgagee, 
involving  of  course*  the  question,  whether  those  interests 
come  under  the  head  of  real  or  personal  estate ;  the  natural 
succession  of  topics  leads  us  to  consider  the  disposition 
which  the  law  makes  of  a  mortgagor's  property  after  his 
death,  in  relation  to  payment  of  the  mortgage  debt ;  or,  in 
other  words,  the  fund  from  which  that  debt  shall  be  paid. 
This  will  be. the  subject  of  the  present  chapter.  It  is  of  far 
less  importance  in  the  United  States  than  in  England,  be- 
cause in  this  country  the  law  makes  substantially  the  same 
disposition  of  the  real  and  personal  property  of  one  deceased. 
Consequently,  in  the  American  Reports,  very  few  cases,  com- 
paratively, are  to  be  found,  where  questions  of  this  nature 
have  arisen.  They  have,  however,  occasionally  occuiTcd, 
and  any  view  of  the  American  law  of  mortgages  would  be 
incomplete,  without  containing  a  general  view  of  this  partic- 
ular topic. 

2.  The  general  principles  relating  to  this  subject  may  be 
thus  stated. 

3.  It  is  a  rule  in  equity,  that,  where  one  dies  leaving  a 
variety  of  funds,  and  a  debt  which  must  be  paid  from  them, 
payment  shall  be  made  from  that  fund  which  had  the  benefit 
of  the  money.  Hence  a  mortgage  upon  real  estate,  in  the 
hands  of  the  heir  or  of  a  devisee,  shall  be  paid  out  of  the 


CH.  XIV.]  FUND  FOR  PAYMENT,  ETC.  375 

personal  estate  in  the  hands  of  the  executor ;  because  tlie 
latter  was  increased  by  the  money  for  which  the  mortt^ace 
was  made,  (a)     And  this  principle  is  adopted,  Ihough  the 


(n)  The  rule  in  question  is  to  some  extent  predicated  upon  tlic  theory 
and  definition  heretofore  alluded  to,  (p.  1,)  which  makes  harrowed  moneij  an 
essential  element  of  a  mortgage.  In  addition  to  the  exceptions  whicli  will 
be  presently  stated,  it  would  seem  that  the  rule  ought  not  to  apply  in  any 
case  where  the  mortgagor's  personal  estate  is  not  augmented  by  makin"  the 
mortgage,  as  in  the  common  case  of  buying  land,  j)aying  pai-t  of  the  price, 
and  mortgaging  back  for  the  rest ;  the  whole  of  which  operation,  taken  to- 
gether, diminishes,  instead  of  increasing  the  personalty. 

Upon  a  sale  by  the  mortgagee  for  the  purpose  of  foreclosing ;  if  in  the 
lifetime  of  the  mortgagor,  the  surplus,  after  satisfying  incumbrances,  is  per- 
sonal estate  ;  if  after  his  death,  it  belongs,  with  the  equity  of  redemption,  (o 
the  heir.     Wright  v.  Rose,  2  Sim.  &  Stu.  323. 

During  the  mortgagor's  life,  the  land  is  said  to  be  the  primary  I'und  for 
payment.     Gilbert  v.  Averill,  15  Barb.  20. 

So  where  a  mortgagor  conveys  the  land,  subject  to  the  payment  of  the 
mortgage  by  the  purchaser,  the  land  is  the  primary  fund  therefor,  and  is  not 
discharged  by  a  release  from  the  mortgagee  to  the  mortgagor  of  his  personal 
liability.     Tripp  v.  Vincent,  3  Barb.  Ch.  613. 

The  purchaser  of  land,  subject  to  the  payment  of  a  mortgage,  must  rely 
on  the  land  for  payment,  and  cannot  make  a  personal  claim  against  the 
mortgagor.     Cherry  v.  Monro,  2  Barb.  Ch.  618. 

Land  was  conveyed  to  two  persons,  who  gave  back  a  joint  bond  and  mort- 
gage for  the  price.  One  of  them  afterwards  conveyed  to  the  other  his 
moiety,  subject  to  the  mortgage,  the  latter  agreeing  to  pay  the  bond  and 
mortgage,  and  giving  the  former  a  bond  of  indemnity  against  it.  The  latter 
then  conveyed  the  whole  to  another  person,  by  a  warranty  deed  ;  and  sub- 
sequently became  insolvent,  and  (ailed  to  pay  the  bond  and  mortgage.  The 
mortgagee  being  about  to  foreclose,  the  last  purchaser  induced  him  to  bring 
an  action  against  the  joint  mortgagor,  who  had  transferred  his  interest  to 
the  other,  upon  the  bond.  A  rule  nisi  for  judgment  having  been  obtained 
against  the  defendant  in  that  suit,  he  tendered  to  the  plaintifl'  the  amount 
due,  with  interest  and  costs,  and  demanded  an  assignment  of  the  bond  and 
mortgage  to  a  third  person,  that  he  might  enforce  them  upon  the  land.  1  lie 
plaintiff,  in  collusion  with  the  purc^haser,  refused  to  receive  the  money  and 
make  the  assignment.  The  defendant  thereupon  files  the  present  bill  in 
Chancery  against  both  these  parties.  Held,  he  might  in  equity  re(iuire  the 
mortgagee  to  resort  to  the  land  for  payment,  and  to  be  subrogated  in  the 
place  of  the  mortgagee  to  his  remedy  against  the  land.     Ibid. 


376  THE   LAW    OF   MORTGAGES.  [CH.  XIV. 

land  be  devised  subject  to  the  incumbrance,  or  the  personal 
estate  bequeathed,  or  the  land  expressly  charged  with  debts, 
or  the  real  estate  limited  in  trust,  either  in  fee  or  for  a  term, 
for  payment  of  debts. 


So,  where  an  equity  is  sold  on  execution,  the  land  is  the  primary  fund. 
2  Cruise,  146. 

A  mortiiace  debt  must  be  paid  out  of  the  personal  estate  of  the  mortgagor, 
and,  if  that  is  not  adequate,  then  the  balance  should  be  paid  out  of  that  por- 
tion of  the  real  estate  contained  in  the  mortgage.  Goodburn  v.  Stevens, 
1  Maryland  Ch.  Decis.  420. 

But  a  mortgagee  may  resort  to  the  mortgaged  property,  after  the  death  of 
the  mortgagor,  without  going  into  an  account  of  the  personal  assets.  Fatten 
V.  Pao^e,  4  Hen.  &Mun.  449.  And  the  administrator  of  an  insolvent  estate 
is  neither  required  nor  allowed  to  apply  the  pei'sonal  assets  to  the  redemp- 
tion of  a  mortgage  made  by  the  intestate.     Gibson  v.  Crehore,  5  Pick.  146. 

An  administ^'ator,  after  representing  the  estate  insolvent,  sold  real  estate, 
under  a  license,  and  ajjplied  tlie  proceeds  in  full  payment  of  a  debt  secured 
by  mortgage  of  such  estate,  which  was  duly  recorded,  but  previously  un- 
known to  him  and  the  purchaser;  charging  himself  in  his  account  with  only 
the  balance.  Held,  he  was  justified  in  so  doing;  inasmuch  as  he  could  not 
make  a  good  title  to  the  estate,  without  extinguishing  the  mortgage,  the 
estate  itself  being  sold,  and  not  a  mere  equity  of  redemption.  The  mort- 
gagee was  not  bound  to  relinquish  his  security  and  receive  a  mere  dividend, 
but  could  hold  it  till  paid  in  full.     Church  v.  Savage,  7  Cush.  440. 

Devise  of  the  A.  estate,  subject  to  debts,  &c.,  to  the  wife  for  life,  remain- 
ders over;  and  of  the  B.  estate,  subject,  &c.,  to  her  absolutely.  The  testator 
afterwards  mortgaged  the  former  estate.  The  personal  property  being  de- 
ficient, held,  the  two  estates  should  contribute  ratably  to  the  payment  of  the 
mortgage.     Middleton  v.  Middleton,  21  Eng.  Law  &  Eq.  542. 

Where  notes  are  secured  by  mortgage,  and  the  mortgagor  devises  part  of 
the  premises  and  sells  the  rest,  and  dies  ;  the  holder  of  the  notes  loses  no 
rights  under  the  mortgage  by  failure  to  present  them  to  the  executor  for 
payment  within  the  time  required  by  law,  in  order  to  hold  the  executor; 
and  there  is  no  distinction  between  the  case  of  a  mortgagee  in  possession 
and  that  of  one  out  of  possession  of  the  mortgaged  jiremises.  Inge  v.  Board- 
man,  2  Ala.  331. 

In  New  Hampshire,  an  administrator  must  redeem  a  mortgage,  unless 
licensed  to  sell  subject  thereto.  Rev.  Sts.  318.  In  Missouri,  the  Court  may 
order  redemption  with  the  personal  assets,  if  the  will  makes  no  provision 
therefor,  and  it  will  be  beneficial  to  the  estate,  and  not  injurious  to  credit- 
ors ;  otherwise,  tlie  Court  may  order  a  sale  of  the  equity.     Missouri  Sts. 


CH.  XIV.]  FUND    FOR    PAYMENT,    ETC.  377 

4.  If  the  personal  estate  is  deficient,  a  mortgage  .shall  he 
discharged  from  the  proceeds  of  land  devised  for  payment  of 
debts.  And  where  one  estate  descends  and  another  suhject 
to  mortgage  is  devised,  the  mortgage  shall  be  paid  from  the 
former,  (b) 


(J))  It  is  said,  there  are  four  classes  of  estates  to  be  applied  in  (lisehargc 
of  mortgage  debts:  first,  the  general  personal  estate,  unless  specially  ex- 
empted or  specifically  bequeathed  ;  secondly,  real  estates  particularly  devised 
for  payment  of  debts,  which  may  be  so  devised  as  to  form  a  mixed  fund  with 
the  (irst;  thirdly,  real  estates  descended,  whether  purchased  before  or  al'ter 
the  date  of  the  will;  fourthly,  real  estates  specifically  devised,  charged  with 
payment  of  debts.     Coote,  547. 

The  devisee  of  an  estate  in  mortgage  may  call  on  an  estate  devised  for 
payment  of  debts,  to  indemnify  him.  So  upon  estates  devised,  and  charged 
with  payment  of  debts.  So  although  the  estate  is  devised  subject  to  incum- 
brances, lb.  544.  So  the  descended  estate  shall  exonerate  the  mortgaged 
estate  devised.  And  the  like  vpill  be  the  case,  if  the  personal  estate  is  e.x- 
empted  from  payment  of  debts,  and  the  mortgaged  estates  devised  subject 
to  incumbrances,  and  other  parts  of  the  real  estate  suffered  to  descend  to  the 
heir.     Ibid. 

After  the  personal  estate  is  exhausted,  estates  expressly  devised  for  pay- 
ment of  debts  will  be  next  applicable.  This  rule,  however,  will  not  apjjly 
to  estates  specifically  devised  charged  with  payment  of  debts.     lb.  545. 

If  the  owner  of  several  leasehold  estates  mortgage  one  of  them,  and  then 
bequeath  them  separately  to  difierent  legatees,  and  direct  payment  of  his 
debts  from  his  residuary  personal  estate,  which  proves  insufficient  for  that 
purpose  ;  the  legatee  of  the  mortgaged  estate  takes  it,  cum  onere,  ami  can- 
not call  for  a  contribution  from  the  others.  HaUiwell  v.  Tanner,  1  lluss.  & 
My.  633. 

But  where  several  estates,  separately  mortgaged,  were  specifically  devised 
to  dilferent  persons,  with  directions  that  the  mortgages  should  be  paid  from 
thaipersonal  estate,  which  proved  insufficient  to  pay  the  mortgage  and  other 
debts  ;  a  decree  was  passed,  that  the  mortgage  and  other  specialty  debts 
should  first  be  paid  from  the  personal  assets  pro  raid,  the  residue  of  the 
mortgage  debts  borne  by  the  respective  estates  on  which  they  were  cliarged, 
and  the  deficiency  of  the  other  specialty  debts,  and  the  simple  contract 
debts,  borne  by  the  several  devised  estates  and  specific  legacies  pro  rata. 
Symons  v.  James,  2  Y.  &  Coll.  301,  >*.  S. 

In  New  York,  under  the  Revised  Statutes,  upon  the  death  of  a  mortgagor, 
the  real  estate  is  primarily  chargeable  in  the  hands  of  tlie  heir  or  devisee, 
unless  the  will  make  provision  for  another  mode  of  payment.  Halsey  t;. 
32* 


378  THE    LAW    OF   MORTGAGES.  [CH.  XIV. 

5.  If,  however,  the  will  either  expressly  provide,  or  contain 
provisions  from  which  a  clear  intent  may  be  inferred,  that 
the  mortgage  debt  shall  fall  upon  the  real  instead  of  the 
personal  estate  ;  the  law  will  carry  it  into  effect.  So  the 
specific  bequest  of  a  chattel  will  exempt  it  from  application 
to  a  mortgage  debt. 

6.  In  the  case  of  Haven  v.  Foster,^  Morton,  J.,  remarked 
"By  the  common  law,  the  heir  is  entitled  to  the  aid  of  the 
personal  property  of  the  mortgagor  in  paying  off  mortgages : 
but  if  the  heir,  without  making  application  for  aid  in  redeem- 
ing, disposes  of  the  mortgaged  estate,  he  cannot  afterwards 
come  upon  the  personal  estate  for  assistance.  And  no 
authority  was  cited  or  has  been  found,  which  requires  the 
administrator  in  England  to  redeem  mortgaged  estates  in 
foreign  countries.  But,  on  the  contrary,  it  is  very  clear,  that 
such  administrator  would  have  no  power  to  do  any  act,  as 
such,  out  of  the  kingdom.  So  an  executor  or  administrator? 
appointed  in  this  State,  has  no  authority  beyond  its  limits. 
He  would  have   no  power  to  make  a  tender  in  any  other 

1  9  Pick.  133,  134. 


Reed,  9  Paige,  446  ;  N.  Y.  Rev.  Sts.  749.  In  1824,  the  intestate  gave  a 
'bond,  secured  by  mortgage.  The  land  was  sold  subject  to  payment  of  the 
mortgage,  and  conveyed  to  a  trustee  for  the  benefit  of  the  wife  of  the  intes- 
tate. After  his  death,  the  cestui  que  irust,  being  legal  owner  under  the 
Revised  Statutes,  administered  upon  the  estate.  Held,  in  equity,  the  land 
was  the  primary  fund  for  the  payment  of  the  mortgage,  and  the  administra- 
trix, owning  subject  thereto,  was  not  allowed  for  a  payment  of  the  mort- 
gage.    Jumel  V.  Jumel,  7  Paige,  591.  • 

In  Pennsylvania,  where  land  is  mortgaged  for  the  payment  of  the  widow's 
share  of  the  valuation  of  the  property  of  an  intestate,  under  an  inquest  from 
the  Orphans'  Court;  the  mortgagee  may  resort  to  the  mortgagor's  personal 
property,  and  is  not  restricted  to  the  land.     Mansell,  &c.,  1  Parsons,  371. 

In  Maryland,  the  devisees  of  mortgaged  property  have  a  right  to  call  on 
the  executor  to  redeem,  to  the  extent  of  the  excess,  where  the  personal 
property  is  more  than  sufficient  to  pay  debts.  But  they  have  no  such 
equity,  as  against  devisees  of  other  property.  Gibson  v.  McCormick,  10  G. 
.&  J.  G6. 


CH.   XIV.]  FUND   FOR   PAYMENT,    ETC.  879 

State,  nor  could  he  resort  to  any  legal  process,  to  compel  the 
mortgagee  to  accept  a  satisfaction  of  the  debt  or  discharge 
the  mortgage.  The  law  imputes  negligence  to  no  man  for 
not  doing  that  which  he  has  no  legal  power  to  do.  It  is  true, 
that  if  the  mortgagee  had  chosen,  he  might  not  only  have 
compelled  the  administratrix  to  pay  out  of  the  estate  here, 
but  he  might  voluntarily  have  accepted  payment  of  her,  and 
given  her  a  valid  discharge.  But  he  could  not  have  beerj 
compelled  to  do  either.  He  had  the  power,  at  his  own  elec- 
tion, either  to  commence  process  upon  the  mortgage  itself,  or 
to  take  out  administration  in  the  State  where  the  mortgajjed 
land  was,  and  in  the  one  way  or  the  other  to  obtain  satisfac- 
tion of  the  debt  from  the  estate  itself  As  the  administratrix 
had  not  the  power  to  prevent  him  from  adopting  either  of 
these  courses,  so  her  omission  to  do  it,  or  to  attempt  to  do  it, 
did  not  amount  to  waste." 

7.  The  rule  above  stated,  (§  2,)  being  founded  on  the  con- 
sideration that  the  debt  was  originally  a  personal  one,  and 
the  charge  on  the  land  only  collateral,  does  not  apply,  where 
the  mortgage  debt  was  contracted  by  one  person,  and  the 
land  descends  to  another,  who  also  dies,  leaving  it  a  part  of 
his  estate.  Thus  if  a  grandfather  make  a  mortgage,  with  a 
covenant  to  pay  the  money,  and  the  land  descend  to  his  son, 
who  dies  without  paying  the  mortgage,  leaving  personal 
estate  and  a  son  ;  the  mortgage  shall  not  be  paid  from  the 
father's  personal  estate.  So  where  one  covenants  to  pay  the 
debt  of  another,  which  is  secured  by  mortgage,  the  personal 
estate  of  the  former  will  not  be  applied  in  the  first  instance 
to  payment  of  the  mortgage.  And  even  though  one  ex- 
pressly charge  his  real  and  personal  estate  with  his  debts, 
the  latter  will  not  be  liable  to  the  payment  of  a  mortgage 
made  by  another. 

8.  So  where  one  purchases  land  subject  to  mortgage,  his 
personal  estate  will  not  go  to  pay  it,  even  though  he  have 
expressly  covenanted  for  its  payment,  unless  an  intention  be 
proved  to  make  the  debt  his  own.  If  husband  and  wife  join 
in  mortgaging  her  land,  and  he  has  the  benefit  of  the  money  ; 


380  THE    LAW    OF   MORTGAGES.  [CH.  XIV. 

it  shall  be  first  repaid  from  his  personal  estate.  But  where 
money  is  borrowed  on  her  estate,  partly  for  his  use  and  partly 
to  pay  her  debts;  he  is  not  bound  to  indemnify  her  estate 
against  any  part  of  it.  Nor  will  his  personal  estate  be  liable, 
if  it  appear  not  to  have  been  her  intention  to  stand  as  a  cred- 
itor fof  the  mortgage-money .1  (c) 

1  2  Cruise,  146-175. 


(c)  The  following  cases  illustrate  the  principles  above  stated  in  the  text  of 
this  chapter.  (See  also  1  Hill,  on  R.  P.  431-433  ;  Mason,  &c.,  1  Parsons,  132; 
Mansell,  &c.  Ibid.  370;  Driver  r.  Ferrand,  1  R.  &  My.  681  ;  Kirke  v.  Kirke, 
4  Russ.  435;  Jones  v.  Bruce,  11  Sim.  221  ;  Ouseley  v.  Anstruther,  10  Beav. 
453 ;  Symons  v.  James,  2  Y.  &  C.  N.  R.  301  ;  Hewett  v.  Snare,  1  De  Gex  & 
Sm.  333;  Merselis  v.  Veeland,  4  Halst.  Ch.  675.)  A  testator,  having  pur- 
chased an  annuity  out  of  lands  mortgaged,  and  for  his  own  protection  taken  an 
assignment  of  the  mortgage,  directed  in  his  will  that  the  mortgage  debt  sl)ould 
be  paid  from  the  personal  estate  ;  and  it  was  decreed  accordingly ;  "  chiefly 
for  that  Pockley  (the  testator)  by  his  will,  which  were  the  words  of  a  dying 
man,  had  declared  it  io  be  Jiis  debt,  and  appointed  it  to  be  paid  out  of  his 
personal  estate."  Pockley  r.  Pockley,  1  Vern.  36.  A  person  having  a  life- 
estate,  with  power  to  settle  a  jointure  upon  his  wife,  covenanted  to  make 
such  settlement,  but  died  without  doing  it.  Upon  a  bill  brought  against  his 
heir  for  a  specific  execution,  it  was  held,  that  the  assets  of  the  deceased 
should  not  be  applied  to  relieve  the  estate  settled,  because  the  debt  did  not 
originally  charge  the  personalty.  The  covenant  remained  as  a  real  lien  on 
tlie  estate,  and  the  personal  estate  could  not  be  applied,  because  there  was 
no  debt  from  which  this  estate  was  to  be  relieved.  Coventry  f.  Coventry, 
9  Mod.  12  ;  2  P.  Wms.  222 ;  Str.  596.  A  person  having  died  after  making 
a  mortgage  of  his  estate,  his  daughter  and  heir  married,  and  her  husband 
settled  the  estate  by  fine  on  himself  and  his  wife,  joined  in  an  assignment  of 
the  mortgage,  and  covenanted  to  pay  the  money.  Alter  his  death,  held,  his 
personal  estate  should  not  be  applied  to  pay  the  mortgage,  as  the  covenant 
was  not  intended  to  change  the  nature  of  the  debt,  but  only  as  an  additional 
security  to  the  mortgagee.  Bagot  v.  Oughton,  1  P.  Wms.  347.  A  father 
havinif  made  a  mortiiajje,  his  son  covenanted  with  an  assignee  of  the  mortgage 
to  pay  the  debt.  Upon  the  death  of  the  father,  the  son  by  a  settlement  suc- 
ceeded to  the  estate.  The  latter  having  died  intestate,  held,  the  debt  should 
not  be  paid  from  liis  personal  assets,  because  the  debt  was  still  that  of  the 
father,  and  the  covenant  of  the  son  was  a  mere  security.  Evelyn  v.  Evelyn, 
2  P.  Wms.  659.     See  Ancaster  v.  Mayer,  1  Bro.  454  ;  Leman  v.  Newnham, 


CH.  XIV.]  FUND  FOR  PAYMENT,  ETC.  881 

9.  If  one,  having  several  leaseholds,  mortgage  one  of  them, 
and  then  bequeathe  them  separately  to  different  parties,  and 


1  Ves.  51.  In  the  case  of  Parsons  v.  Freeman,  Ambl.  115  ;  2  P.  AViii.<.  GG4 
n.,  it  was  said  by  Lord  Hardvvicke,  that,  where  an  ancestor  lias  not  per- 
sonally charged  himself  with  the  mortgage  debt,  the  heir  sliall  take  cum 
onere.  So  if  one  purchase  the  equity  of  redemption,  with  usual  covenants 
to  pay  the  mortgage,  he  was  inclined  to  the  opinion,  though  he  knew  of  no 
case  which  decided  the  point,  that  the  heir  could  not  claim  to  have  the  land 
relieved.  But  where,  as  in  that  case,  the  purchaser  agreed  with  the  seller 
to  pay  a  part  of  the  price  to  him,  and  the  rest  to  the  mortgagee,  this  made 
the  debt  his  own,  and  it  should  be  first  paid  from  the  personal  estate.  (It  is 
supposed  by  Chancellor  Kent,  (Cumberland  v.  Codrington,  3  Johns.  Ch. 
266,  267,  a  case  of  extraordinary  learning  and  value,)  that  this  case  is  im- 
perfectly reported,  no  facts  being  stated,  and  a  very  brief  note  of  the  opinion. 
He  remarks,  that  as  it  stands  it  is  repugnant  to  most  of  the  cases  before  and 
after  it,  and  even  to  another  decision  of  Lord  Hardwicke  himself,  made  soon 
afterwards.  Thus  in  Lewis  v.  Nangle,  (Amb.  150,  2  P.  Wms.  664,  n.,)  an 
estate  subject  to  mortgage  having  come  to  a  married  woman,  the  husband 
borrowed  money  upon  a  bond  and  mortgage,  in  which  she  joined,  and  the 
money  was  applied  partly  to  pay  her  debts  and  partly  for  his  use.  There 
was  a  covenant  by  the  husband  to  pay  the  whole  debt.  Lord  Hardwicke 
held,  that,  according  to  the  presumed  intention  of  the  parties,  the  land  was 
the  primary  fund  for  payment,  and  the  husband  was  not  bound  to  relieve  it.) 
In  the  case  of  Forrester  v.  Leigh,  Ambl.  171  ;  2  P.  Wms.  €64,  n.,  a  testator 
had  purchased  several  mortgaged  estates,  and  covenanted  to  pay  one  of  the 
mortgage  debts.  He  purchased  a  part  of  another  of  the  estates,  and  he  and 
his  co-purchaser  covenanted  to  pay  their  several  shares,  and  to  indemnify 
each  other.  Held,  by  Lord  Hardwicke,  as  between  legatees  and  devisees 
of  the  testator,  the  debt  should  be  paid  from  the  land. 

A  mortgagor  coflveyed  the  estate  with  warranty,  except  as  against  the 
mortgage,  providing  also  that  the  mortgage  debt  should  be  paid  by  the  pur- 
chaser from  the  purchase-money.  An  indorsement  acknowledged  payment 
of  a  part  of  the  price  on  perfection  of  the  deed,  and  the  rest  allotvcd  on  ac- 
count of  the  mortfjaye.  The  purchaser  by  will  gave  a  large  personal  estate 
to  his  wife,  and  also  devised  to  her  the  mortgaged  land  lor  life,  then  to  his 
oldest  son  George  in  fee,  subject  to  debts  and  legacies,  declaring  that  his 
wife  should  hold,  free  from  incumbrance,  and  that  George  should  pay  the 
interest  of  the  mortgage  debt  from  other  lands  devised  to  him.  After  some 
legacies,  he  bequeathed  the  rest  of  his  personal  property,  after  payment  of  all 
his  just  debts,  and  all  his  real  estate,  to  George,  whom  lie  appointed  liis  exec- 
utor.    George  paid  the  interest,  but  not  the  principal,  of  the  mortgage  debt. 


382  THE   LAW   OF   MORTGAGES.  [CH.    XIV. 

direct  his  debts  to  be  paid  from  his  residuary  personal  estate, 
which  proves  insufficient  for  the  purpose  ;  the  legatee  of  the' 


His  mother  also  released  her  interest  in  the  land  to  him.  He  made  a  will, 
jjivinof  small  annuities  to  his  younger  sons  ;  the  mortgaged  land,  according 
to  his  estate  therein,  to  his  30ungest  son,  William  ;  and  the  principal  part 
of  his  estate,  which  was  very  large,  to  his  eldest  son,  Robert.  After  the 
death  of  George,  Robert  refused  to  pay  the  principal  or  interest  of  the  mort- 
2a<Te  debt,  and,  William  being  unable  to  pay  it,  the  mortgage  was  sold,  and 
afterwards  the  estate  also,  under  a  decree.  William  then  filed  a  bill  against 
the  executors  of  the  father  (Robert  being  one)  and  of  the  grandfather,  to 
have  the  mortgage  debt  paid  from  the  personal  assets,  in  relief  of  the  land. 
Lord  Chancellor  Lifford  decreed,  that  the  mortgage  debt  was  the  debt  of  the 
grandfather  at  his  death  ;  and  that  his  personal  estate,  which  came  first  to 
the  son  and  afterwards  to  the  grandson,  should  be  applied  to  pay  it.  This 
decree  was  affirmed  in  the  House  of  Lords.  Earl  of  Belvedere  v.  Rochford, 
5  Bro.  Pari.  299.  (Chancellor  Kent  (3  Johns.  Ch.  270,  271,  272)  questions 
the  binding  authority  of  this  decision.  He  remarks,  that  it  has  been  disre- 
garded or  rejected  by  Lords  Thurlow,  Alvanley,  and  Eldon,  and  by  Sir 
William  Grant ;  and  also  that  no  precise  account  is  given  of  the  reasons 
upon  which  it  proceeds  ;  and  that  it  may  perhaps  be  considered  as  turning 
upon  the  construction  of  a  will  and  its  very  special  provisions.) 

A  mortgage  was  made  to  the  plaintiff  of  a  certain  lot  of  land,  and  the 
mortgagor  then  devised  all  his  estate,  including  many  other  lots,  to  the  same 
devisee.  The  devisee  devised  the  land  mortgaged  to  one  person,  and  the 
rest  of  her  estate  to  her  executors.  The  plaintiff  having  recovered  judg- 
ment upon  the  bond  secured  by  the  mortgage,  a  motion  was  made,  that 
the  debt  should  be  levied  upon  the  land  mortgaged,  and  the  rest  of  the  estate 
discharged.  Held,  all  the  lands  of  the  mortgagor  should  contribute,  accord- 
ing to  their  respective  values  ;  that  the  will  of  the  first  devisee  showed  no 
intention  that  the  devisee  of  that  will  should  take  the  esttte  cum  onere,  and 
therefore  the  mortgage  debt  should  be  satisfied  equally  from  this  and  the 
other  lands ;  and  that  as  the  latter  devise  was  specific,  to  charge  this  devisee 
Avith  the  whole  debt  would  plainly  defeat  the  intention  of  the  devisor,  while 
charging  the  lands  held  by  the  residuary  legatees  would  have  no  such  effect. 
Morris  v.  McConnaughy,  2  Dall.  189. 

A  mortgagor  having  died,  after  devising  the  land,  the  devisee  covenanted 
with  the  holder  of  the  mortgage,  that  the  laud  should  remain  bound  for  the 
debt  and  interest,  with  an  addition  of  one  per  cent,  of  interest.  After 
the  death  of  the  devisee,  the  question  arose,  whether  the  debt  and  interest, 
or  at  least  the  arrears  of  interest,  with  the  additional  one  per  cent.,  should 
be  paid  from  his  personal  estate.     Held,  both  the  principal,  the  regular  and 


CH.  XIV.]  FUND    FOR    PAYMENT,    ETC.  383 

estate  mortgaged  must  take  it  cum  owere,  and  cannot  claim 
contribution  fron:i  the  other  legatees.^ 

1  Halliwell  v.  Tanner,  1  Russ.  &  My.  G33. 


the  additional  interest,  should  be  primaril}'  charged  upon  the  land.     Shafto 
V.  Shafto,  2  P.  Wnis.  664,  n.  1. 

In  Tankerville  v.  Fawcet,  2  Bro.  57,  Lord  Kenyon  declared,  that  wlicre 
an  estate  comes  to  a  person,  subject  to  a  mortgage,  although  the  mortgage 
is  afterwards  assigned,  and  the  party  covenants  to  pay  the  money,  his  per- 
sonal estate  is  not  bound.  And,  a  devisee  having  voluntarily  cliarged  a 
simple  contract  debt  of  the  testator  upon  the  land  devised,  and  died  ;  held, 
the  debt  was  not  the  proper  debt  of  thedevisee,  and  his  personal  estate  was 
not  liable. 

A  purchaser  of  a  mortgaged  estate  agreed  with  the  mortgagor,  as  part  of 
the  consideration,  to  pay  the  debt  to  the  son  and  heir  of  the  mortgagee,  and 
the  rest  of  the  price  to  the  mortgagor.  He  also  covenanted  with  the  mort- 
gagor to  this  effect,  and  that  he  would  indemnify  him  from  the.  mortgage. 
The  purchaser  having  died,  leaving  a  will,  the  devisee  brings  a  bill  in  equity 
to  have  the  mortgage  discharged  from  the  personal  estate.  Held,  the  bill 
could  not  be  maintained  ;  that  the  personal  estate  is  never  chargeable  in 
equity,  unless  it  is  chargeable  in  law ;  that  the  purchaser  took  the  estate 
subject  to  the  charge,  but  the  debt,  as  to  him,  was  real,  not  personal ;  and 
that  his  contract  with  the  mortgagor  was  a  mere  contract  of  indemnity, 
which  the  law  would  have  implied,  though  not  expressly  made.  Tweddell 
r.  Tweddell,  2  Bro.  101,  152. 

An  estate  held  by  a  lease  for  lives,  subject  to  a  charge  of  £2,200  to  one 
A.,  was  conveyed  subject  to  this  charge,  and  to  another  of  £900  to  B.,  by 
^  an  indenture  to  which  A.  was  a  party,  and  in  which  the  purchaser  cove- 
nanted to  pay  both  charges.  The  purchaser  paid  the  debt  to  B.,  and  after- 
wards gave  bond  to  pay  A.  the  interest  of  her  claim  for  her  life,  and  the 
principal  at  his  death.  The  lease  having  been  repeatedly  renewed,  the  pur- 
chaser died,  having  devised  the  estate  to  two  of  the  defendants,  and  appointed 
two  others  of  the  defendants  his  executors.  The-charge  being  called  in,  and 
paid  to  a  legatee  of  A.  by  the  executors,  the  defendants  were  called  on  by 
the  plaintiffs'  pecuniary  legatees,  who  were  unpaid,  to  have  the  £2,200  re- 
placed by  the  devisees  of  the  land,  and  paid  over  to  them.  Hold,  notwith- 
standing the  covenant  by  the  purchaser  to  pay  the  debt,  contained  in  an 
instrument  to  which  A.,  the  holder  of  the  debt,  was  a  party,  and  the  subse- 
quent bond,  changing  and  extending  the  original  time  of  payment,  the  na- 
ture of  the  debt  was  not  altered,  but  it  continued  primarily  a  charge  upon 
the  land ;  that,  though  the  purchaser  became  personally  liable,  this  di.l  not 
subject  his  per.sonal  estate,  because  no  such  intention  appeared ;  and  the 


881:  THE    LAW    OF   MORTGAGES.     ,  [CH.  XIV. 

10.  But  where  several  estates,  subject  to  distinct  mort- 
gages, were  specifically  devised  to  different  persons,  with  a 


defendants  were  decreed  to  pay  over  the  money.  Billinghurst  v.  Walker, 
2  Bro.  604. 

(It  seems,  to  charge  the  personal  estate,  the  assumption  of  the  debt  must 
be  accompanied  with  evidence  of  an  intention  to  assume  it  as  a  personal 
debt,  detached,  as  it  were,  from  the  land.     3  Johns.  Ch.  256.) 

In  the  case  of  Mattheson  v.  Hardwicke,  (2  P.  TVms.  664,  n.)  there  was  a 
devise  to  two  persons,  charged  with  debts  and  legacies.  One  of  the  devisees 
paid  the  whole  except  one  legacy,  for  which  he  gave  his  note.  It  appeared 
that  he  had  paid  off  the  other  incumbrances,  in  order  to  relieve  the  land 
from  them  entirely.  The  devisee  having  died,  held,  the  note  was  merely 
collateral  security,  and  the  land  the  primary  fund  for  payment  of  the  legacy. 

(The  question  in  many  of  the  cases  seems  to  be,  not  whether  the  party 
acquiring  the  estate  mortgaged  or  charged  has  made  himself  personally  liable 
for  the  debt,  but  whether  the  land  or  the  personal  estate  shall  be  treated  as 
the  primary  fund  for  payment.  The  distinction  is,  that  where  land  is  mort- 
gaged as  security  for  the  mortgagor's  own  debt,  the  debt  is  the  principal  and 
the  mortgage  merely  collateral.  But  the  purchaser  of  a  mortgaged  estate, 
though  he  personally  assume  and  covenant  to  pay  the  debt,  is  treated  as  a 
debtor  only  in  respect  to  the  land,  and  his  promise  is  considered  as  made  on 
account  of  the  land,  which  therefore  is  the  primary  fund  for  payment.  The 
cases  establishing  each  of  these  propositions  are  said  to  be  equally  numerous 
and  decisive.     3  Johns.  Ch.  256,  257.) 

The  owner  of  land,  having  mortgaged  it  to  raise  money  for  his  son,  con- 
veyed the  land,  subject  to  the  mortgage,  to  the  use  of  the  son,  who  joined 
with  his  father  in  a  covenant  to  pay  the  money.  The  land  was  afterwards 
reconveyed  to  the  father,  who  covenanted  to  discharge  the  mortgage,  and 
afterwards  borrowed  a  further  sum  from  the  mortgagee,  and  made  a  new 
mortgage  for  the  whole  debt.  A  question  arising  between  the  heir  and  per- 
sonal representative  of  the  mortgagor,  which  should  pay  the  debt ;  Lord 
Alvanley,  Master  of  the  Rolls,  held,  that  though  the  debt  belonged  to  the 
son  primarily  in  equity,  and  to  the  father  and  son  together  at  law,  the  father 
had  made  it  his  own ;  and  that  it  was  as  strong  a  case  as  could  exist  without 
an  express  declaration.  He  was  careful  not  to  contradict  in  any  degree  the 
principle  established  in  the  case  of  Tweddell  v.  Twcddell,  which  was  a  very 
governing  case.  In  that  case  there  was  no  communication  with  the  mort- 
gagee, but  only  a  covenant  of  indemnity,  and  the  purchaser  did  not  thereby 
personally  assume  the  debt.     Woods  v.  Pluntingford,  3  Ves.  128. 

In  BiUler  v.  Butler,  (5  Ves.  534,)  the  purchaser  of  a  mortgaged  estate 
agreed  v/itli  the  vendor  to  pay  the  mortgage  debt,  and  a  further  sum  to  the 


CH.  XIV.]  FUND   FOR   PAYMENT,    ETC.  3g5 

direction  that  the  mortgages  should  be  discharged  from  the 
personal  estate,  so  that  the  devisees  might  hold  the  cstutes 


vendor,  but  there  was  no  communication  with  tlie  mort"a<Tee.  The  author- 
ity of  Tweddell  v.  Tweddell  was  recognized,  to  show  that  the  debt  was  pri- 
marily chargeable  upon  the  land,  and  did  not  become  the  debt  of  the  pur- 
chaser, as  a  personal  liability.  Lord  Alvanley  collected  from  the  decisions 
that  the  purchaser  of  land,  charged  with  a  debt,  by  a  mere  covenant  to 
indemnify  the  vendor,  does  not  make  the  debt  his  own,  except  in  respect  to 
the  estate  ;  and  the  estate,  and  not  his  personal  property  must  bear  it.  The 
purchaser  might  be  circuitously  liable  to  the  vendor  for  his  indemnity,  but 
in  such  case  the  decree  would  have  been  for  a  sale  of  the  land. 

In  the  case  of  Waring  u.  Ward,  (5  Ves.  670;  7,  332,)  the  purchaser  of  an 
estate  mortgaged  borrowed  a  further  sum,  for  which  he  gave  a  new  bond 
and  mortgage.  After  his  decease,  held,  the  debt  should  be  paid  from  the 
personal  estate,  because  the  personal  contract  was  primary,  and  the  real 
contract  only  secondary.  Lord  Eldon,  in  giving  judgment,  remarked,  that 
in  general  the  personal  estate  was  primarily  liable,  because  the  contract  was 
primarily  a  personal  one,  and  the  land  bound  only  in  aid  of  the  personal 
obligation  ;  that  Lord  Thurlow  carried  the  doctrine  so  far  as  to  hold,  that  if 
the  purchaser  of  an  equity  of  redemption  covenants  to  pay  the  mortgage 
debt,  and  also  to  raise  the  interest  from  four  to  five  per  cent.,  yet,  as  be- 
tween his  real  and  personal  representatives,  even  the  additional  interest  is 
not  primarily  a  charge  upon  the  personal  estate,  being  incident  to  the 
charge  ;  that,  even  without  any  express  covenant,  the  purchaser  of  an  equity 
is  bound  to  indemnify  the  vendor  against  any  personal  obligation,  and  pay  a 
debt  charged  upon  the  land ;  that  the  case  of  Tweddell  v.  Tweddell  pro- 
ceeded upon  the  ground,  that  the  debt  due  the  mortgagee  was  never  a  debt 
directly  from  the  purchaser ;  and  that,  if  Lord  Thurlow  was  right  upon  the 
fact,  the  case  was  a  clear  authority,  that  the  purchase  of  an  equity  will  not 
make  the  mortgage  debt  the  debt  of  the  purchaser,  and  in  his  hands  it  is  the 
debt  of  the  estate,  and  a  mortgage  interest,  as  between  his  representatives. 

In  the  case  of  The  Earl  of  Oxford  v.  Lady  Rodney,  (14  Ves.  417,)  the 
testator  purchased  an  estate  subject  to  mortgage,  paid  the  surplus  of  the 
price  to  the  vendor,  and  then  covenanted  with  the  mortgagee  to  pay  him  the 
mortgage  debt.  After  his  death,  upon  the  question  whether  tlie  personal 
estate  should  go  to  pay  the  debt.  Sir  William  Grant,  Master  of  the  Kolls, 
remarked,  that  it  was  not  very  easy  to  reconcile  the  case  of  Tweddell  i'. 
Tweddell  with  the  decision  of  Lord  Hardwicke,  in  Parsons  v.  Freeman,  that 
where  the  mortgage-money  is  taken  as  part  of  the  price,  the  charge  becomes 
a  debt  from  the  purchaser.  But  he  admits  the  correctness  of  Lord  Thur- 
low's  principle,  where  the  contract  of  the  purchaser  gives  the  mortgagee  no 

VOL.  I.  33 


386  THE    LAW    OF   MORTGAGES.  [CH.  XIV. 

freed  therefrom  ;  and  the  personal  assets  proved  deficient  for 
payment  of  the  mortgage   and  other  debts  ;    a  decree  was 


direct  and  immediate  right  against  himself,  but  is  a  mere  contract  of  indem- 
nity. (Upon  these  observations  Chancellor  Kent  remarks,  (3  Johns.  Cha. 
260,  261,)  that  the  mortgage  debt  is  always  j5or<  of  ilie  ■price.^  unless  the  ven- 
dor agrees  to  remove  the  incumbrance.  By  his  covenant  of  indemnity,  the 
purchaser  takes  the  land  cum  onere,  and  the  value  of  the  incumbrance  is  of 
course  deducted  from  the  value  of  the  land.) 

From  this  series  of  cases  Chancellor  Kent  deduces  the  general  principle, 
that  a  covenant  by  the  purchaser  of  an  equity  of  redemption,  to  indemnify 
the  vendor  against  the  mortgage,  does  not  make  the  debt  his  own,  so  as  to 
charge  it  primarily  upon  his  personal  assets.  To  have  this  effect,  there  must 
be  a  direct  communication  and  contract  with  the  mortgagee,  and  some  de- 
cided evidence  of  an  intent  primarily  to  charge  the  personal  estate  ;  as  where 
the  original  contract  is  essentially  changed,  and  lost  or  merged  in  the  new 
and  distinct  engagement  with  the  mortgagee  ;  and  the  party  shows,  that  he 
meant  to  assume  the  debt,  absolutely  and  at  all  events,  as  his  own  personal 
liability.     3  Johns.  Cha.  261,  262. 

The  following  are  the  most  recent  English  cases  upon  the  subject  under 
consideration. 

A  testator,  by  his  marriage  settlement,  after  reciting  that  he  was  seised  in 
fee  of  certain  estates,  subject  to  mortgage  debts,  the  amount  of  which  was 
mentioned,  and  which  he  had  contracted,  settled  the  estates,  subject  express- 
ly to  the  debts,  on  himself  for  life,  remainder  to  secure  a  jointure  for  the 
wife,  remainder  to  the  first  and  other  sons  of  the  marriage  in  tail  male,  re- 
mainder to  himself  in  fee,  and  covenanted  for  the  title,  excepting  the  debts  ; 
and  he  reserved  to  himself  the  power  of  raising  £lO,000  by  mortgage,  to  be 
made  redeemable  by  the  person  for  the  time  being  entitled  to  the  freehold 
or  inheritance.  The  testator  exercised  the  power,  reserving  the  equity  of 
redemption  to  himself,  his  heirs,  executors,  &c.,  or  the  person  for  the  time 
being  entitled,  as  aforesaid,  and  covenanted  to  pay  the  mortgage  debt.  He 
then  died  without  issue,  having  by  his  will  charged  his  real  and  personal 
estate  with  his  debts,  and  bequeathed  the  residue  of  his  personal  estate  after 
payment  of  his  debts,  and  devised  his  remainder  in  fee  expectant  on  the 
failure  of  his  issue  male  to  his  brother  and  his  brother's  sons  in  strict  settle- 
ment. Held,  they  were  not  entitled  to  have  his  personal  estate  applied  to 
exonerate  the  devised  estates  from  any  of  the  mortgage  debts.  Ibbetson  v. 
Ibbetson,  12  Sim.  206,  Shadwell,  V.  C,  says  (Ibid.  216,  217):  — "The 
difficulty  in  this  case  is,  that  if  you  claim  the  benefit  of  the  common  rule, 
then  you  will  have  the  personal  estate  of  the  settlor  applied  to  exonerate  the 
whole  inheritance  ;  and  therefore  it  will  be  applied  contrary  to  the  intention 


CH.   XIV.]  FUND    FOR   PAYMENT,   ETC.  387 

made,  that  the  mortgage  and  other  specialty  debts  should 
first  be  paid  from  the  personal  assets  pro  rata,  that  the  resi- 


of  the  settlor.  For  his  widow  is  still  alive,  and  therefore  the  efiect  will  be 
to  exonerate  the  settled  estates  in  her  favor.  As  the  settlement  was  made 
so  as  to  manifest  an  intention,  on  the  part  of  the  settlor,  that  the  whole 
inheritance  should  bear  the  mortgages,  I  think  that  that  intention,  havintr 
been  once  plainly  manifested,  must  be  considered  as  existing  until  it  is 
shown  to  have  been  altered.  And  as  there  is  nothing  in  this  case  which 
shows  that  that  intention  was  ever  changed,  my  opinion  is  that  the  common 
rule  does  not  apply." 

A  testator  gave  to  his  wife  certain  specific  articles  of  personal  property, 
and  certain  portions  of  real  estate  free  from  the  mortgages  thereon,  and  the 
benefit  of  certain  contracts  for  the  purchase  of  other  lands.  He  devised  the 
rest  of  his  real  estates,  in  trust  to  the  devisee  to  sell,  and  from  the  proceeds  pay, 
first,  his  funeral  and  testamentary  expenses,  his  debts  due  on  the  mortgages 
of  the  estates  devised  to  his  wife,  the  sums  due  on  the  contracts,  and  all  his 
other  debts;  and  in  the  next  place,  he  directed  certain  sums  to  be  paid  from 
the  proceeds  to  different  persons,  and  gave  tlie  residue  to  another  legatee, 
and  appointed  his  wife  sole  executrix.  Held,  the  personal  estate  was  exon- 
erated from  the  debts.     Blount  i'.  Hipkins,  7  Sim.  43. 

A  testator,  having  mortgaged  an  estate  for  £4,460,  devised  it  in  fee,  the 
devisee  "  paying  the  mortgage  thereon  ; "  and  devised  his  residuary  real  and 
personal  estates  to  trustees  for  payment  of  debts,  and  gave  to  the  mortgagee, 
through  his  executors,  £2,000  to  exonerate  the  estate.  Held,  if  he  had 
simply  devised  "  the  estate,"  or  "  the  estate  subject  to  the  mortgage  thereon," 
the  mortgage  would  have  been  payable  from  his  general  estate.  But  the 
words,  "  he  paying,"  &c.,  imposed  a  duty  on  the  devisee,  and  constituted  a 
direction  or  condition  that  he  should  pay  the  mortgage,  or  take  the  estate 
subject  to  the  mortgage,  over  and  above  the  £2,000.  Lockhart  v.  Hardy, 
9  Beav.  379. 

A  mortgagee  made  a  sub-mortgage  of  the  estate,  and  then  devised  it,  and 
bequeathed  to  the  sub-mortgagee,  through  his  executors,  a  certain  sum,  to 
clear  the  estate  in  part.  After  his  death,  the  sub-mortgagee  foreclosed. 
Held,  the  devisee  was  entitled  to  the  sum  bequeathed.     Ibid. 

"  If  an  estate  descend  to  the  heir,  subject  to  a  mortgage,  and  he  become 
a  party  to  an  assignment  of  the  mortgage,  and,  by  bond  or  covenant,  con- 
tract with  the  assignee  to  pay  the  amount  due,  he  does  not  thereby  make  it 
his  personal  debt,  as  between  his  heir  and  executor.  As  between  those 
parties,  the  mortgaged  estate  remains  the  primary  fund  for  the  payment  of 
the  mortgage  debt ;  and  the  bond  or  covenant  of  the  heir  of  the  mortgagor 
is  considered  merely  as  an  auxiliary  security  to  the  assignee."  Per  Leach, 
M.  R.,  Barham  v.  Thanet,  3  My.  &  K.  622. 


888  THE   LAAV   OF   MORTGAGES.  [CH.  XIV. 

due  of  the  mortgage  debts  should  be  borne  by  the  respective 
estates  to  which  they  belonged,  and  the  deficiency  of  the 
other  specialty  debts  and  the  simple  contract  debts,  by  the 
several  devised  estates  and  the  specific  legacies,  pro  raid} 

11.  In  general,  on  a  deficiency  of  other  assets  for  payment 
of  mortgage  debts,  each  devisee  takes  his  estate  cum  onere. 
But  where  different  mortgaged  estates  form  part  of  a  general 
mass  of  property,  which  is  devised  charged  with  debts,  these 
estates,  on  failure  of  other  assets,  shall  contribute,  in  propor- 
tion to  their  respective  values,  to  pay  off  the  mortgages,  as 
well  as  the  other  remaining  debts.^ 

12.  A  mortgagor,  by  his  will,  ordered  payment  of  his  debts, 
and  devised  his  residuary  lands,  including  the  land  mort- 
gaged and  all  his  residuary  personal  property,  to  his  oldest 
son,  who  was  the  executor.  The  son  dies  intestate,  the 
mortgage  not  being  paid.  The  father  and  son  leave  suffi- 
cient personal  property  to  pay  the  mortgage.  Held,  as  be- 
tween the  heir  and  administrator  of  the  son,  the  mortgaged 
estate  was  the  primary  fund  for  payment.^ 

13.  Personal  estate  will  not  be  primarily  applied  to  the 
prejudice  of  legatees,  except  residuary  legatees,  or  of  credit- 
ors.    So  the  paraphernalia  of  the  widow  are  exempted.* 

14.  A  specific  devisee  of  mortgaged  estate  shall  have  the  • 
estate  exonerated  from  the  debt,  as  against  a  residuary  lega- 
tee, though  such  estate,  and  the  residue,  are  both  given  freed 
from  debt;  if  the  fund  provided  by  will  for  the  payment  of 
debts  proves  insufficient.^ 

1  Symons  v.  James,  2  Y.  &  Coll.  (N.        *  Coote,  540. 
S.)  301.  5  Brooke  v.  Warwick,  1  Hall  &  Tw. 

^  Coote,  548.  142. 

3  Clarendon  v.  Barham,  1  Y.  &  Coll. 
688. 


CH.  XV.]  EQUITY    OF   REDEMPTION.  389 


CHAPTER  XV. 

EQUITY    OF    REDEMPTION. 

1.  Definition  and  nature  of  an  equity  '      30.  And  liable  to  legal  process, 
of  redemption.  83.  But  it  is  not  thus  liable,  in  a  suit 

3.  Distinction  between  an  equity  of  i  upon  the  mortgajre  debt ;    cases  and 
redemption  and  a  trust.  j  distinctions  upon  this  subject. 

12.   Who  may  redeem  a  mortgage.  48.  Wliether  the  indorsee  of  a  mort- 


21.  Against  whom  redemption  may 
be  claimed. 

24.  Redemption  in  case  of  the  death 
of  the  mortgagor. 


gage  note  may  levy  upou  the  equity  of 
redemption. 

51.   Curtesy  in  an  equity  of  redemp- 
tion. 


27.  Redemption  by  a  party  having  a  52.  Whether  subject  to  r/o«.w ;  Eng- 
partial  interest  in  the  property  ;  claim  I  lish  and  American  law  upon  this  sub- 
for  reimbursement.  ject. 

29.  An  equity  of  redemption  is  as-  83.  On  what  terms  the  widow  may 
sets.  I  redeem. 

1.  In  the  previous  chapters,  treating  of  the  respective  es- 
tates of  mortgagor  and  mortgagee,  it  has  of  course  been 
found  necessary  to  explain  the  nature  of  that  title  which  the 
law  denominates  an  equity  of  redemption.  We  propose  now, 
however,  to  consider  the  subject  in  more  minute  detail,  and 
distinctly  point  out  the  qualities,  rights,  and  obligations  inci- 
dent to  this  somewhat  anomalous  interest  in  real  property. 

2.  It  is  said,^  an  equity  of  redemption  can  be  more  appro- 
priately illustrated  than  defined  or  described.  While  .some 
learned  judges  have  called  it,  in  the  eye  of  a  court  of  equity, 
the  fee-simple  of  the  land,  others  have  spoken  of  it  as  nothing- 
at  all  in  the  eye  of  the  laic-  (a) 

1  1  Pow.  250  b,  n.  A.  „  „,.,     _ 

^  See  Burgess  v.  Wheate,  1  W.  Bl.  145 ;  Preston  v.  Christmas,  2  W  ils.  8b. 


(a)  It  is  said,  an  equity  is  an  estate  or  interest  in  the  land,  reserved  or 
retained  by  the  tenant.     Viscount,  &c.  v.  Morris,  3  Hare,  407. 

So.  in  an  earlier  case,  that  an  equity  is  an  estate  :  it  may  be  devised, 
granted,  or  entailed  with  remainders,  which  may  be  barred  by  fine  and 
r.^covery  ;  not  a  mere  right.  It  is  a  seisin;  the  mortgagor  is  owner-  the 
33  * 


390  THE   LAW    OF   MORTGAGES.  [CH.  XV. 

3.  An  equity  of  redemption,  being,  as  the  name  imports, 
an  estate  fully  recognized  only  by  Courts  of  Equity,  has  of 
course  many  qualities  in  common  with  a  trust,  which  is  also 
peculiarly  a  subject  of  the  same  jurisdiction.  The  mortgagee 
is  called  a  trustee  for  the  mortgagor,  subject  to  the  security.^ 
So  it  has  been  said,^  that  a  mortgagee,  after  receiving  his 
debt,  is  considered  as  a  trustee  of  the  estate  for  the  mort- 
gagor till  a  reconveyance.  So  a  mortgage  and  a  conveyance 
in  trust  by  way  of  security  are  said  to  be  alike  in  this  respect, 
and  in  being  redeemable  at  any  time  before  sale,  but  not 
after.-''  The  following  points  of  distinction  have  been  sug- 
gested between  these  respective  titles. 

4.  An  equity  of  redemption  is  a  title  in  equity,  not  merely 
a  trust  ;'^  although,  as  is  said,  this  title  cannot  be  asserted 
except  by  subpoena.^ 

5.  A  deed  of  trust  in  the  nature  of  a  mortgage  is  condi- 

^  Silvester  v.  Jarnian,  10  Price,  84.  the  same  land,  see  Little  v.  Brown,  2 

See  Coates  v.  Woodworth,  13  111.  654 ;  Leigh,  353  ;  Bell  v.  Hammond,  Ibid. 

King  V.  The  Merchants,  &c.,  1  Seld.  416.     See  also  Ch.  1,  §  37  ;  Ch.  2,  §  7, 

547  ;    Charles  v.   Clagett,  3  Md.   82 ;  and  seq. 

Chowning-  r.  Cox,  1  Eand.  30G  ;  Mor-  -  Reading  of  Judge  Trowbridge,  8 

gan  V.  Morgan,  10  Geo.  297  ;  Bloomer  v.  Mass.  411. 

Van  Rensselaer,  15  111.  503  ;  Smith  v.  ^  Hogan  i;.  Lepretre,  1  Port.  892. 

Otley,26Miss.  291;  Briggsf.  Davis,  20  *  1    Sand.   Uses,   203;    1  Ed.   206. 

N.  Y.  15.     As  to  the  respective  rights  See  Dobson  v.  Land,  14  Jur.  288. 

and  duties  of  the  parties,  growing  out  ^  Viscount,  &c.  i\  Morris,  3  Hare, 

of  a  7no)ic/aye  and  conveyance  in  trust  of  402. 


mortgage  personal  estate,  which  will  not  pass  by  a  devise  of  lands,  tene- 
ments, and  hereditaments.  Casborne  v.  Scarfe,  1  Atk.  605,  606  ;  Paulling 
V.  Barron,  32  Ala.  9  ;  Buchanan  v.  Munroe,  22  Tex.  537  ;  Barelli  v.  Schy- 
manski,  14  La.  Ann.  47.  "A  well-defined  interest  on  land,  having  many  of 
the  attributes  of  general  ownership."  Per  Denio,  J.,  Pell  v.  Ulman,  4  Smith, 
145.  See  Briggs  v.  Davis,  20  N.  Y.  15.  It  descends  to  the  heir.  Asay  v. 
Hoover,  5  Barr,  2L  In  Ellithorp  v.  Dewing,  (1  Chlpm.  143,)  it  was  held, 
that  a  release  of  the  equity  of  redemption  by  mortgagor  to  mortgagee,  made 
■while  a  third  person  was  in  possession,  claiming  adversely  to  both,  was  not 
within  the  act  to  prevent  fraudulent  speculations  and  sales  of  choses  in  ac- 
tion. So  an  assignment  by  the  mortgagor  of  his  interest  is  not  champerty, 
though  the  mortgagee  be  in  possession.  Borst  v.  Boyd,  3  Sandf.  Ch.  501. 
But  see  King  v.  The  Stale,  &c.,  7  Cnsh.  7. 


CH.  XV.]  EQUITY    OF   REDEMPTION.  391 

tional  and  defeasible.     An  absolute  deed  of  trust  is  for  the 
trust  purposes  unconditional  and  indefeasible.^ 

6.  A  mortgage  does  not  per  se  create  a  trust,  more  espe- 
cially  before  condition  broken.  It  conveys  the  estate  subject 
to  a  condition.  It  is  founded  on  contract.  The  mortgagee 
is  not  accountable  to  any  one,  until  be  enters,  takes  posses- 
sion, and  receives  the  rents  and  profits  ;  in  which  case  he 
may,  in  some  sense,  be  considered  as  trustee,  for  he  is  to  ren- 
der an  account ;  but  this  must  be  done  in  the  manner  and 
for  the  purposes  provided  in  the  several  statutes  for  redeem- 
ing mortgages,  and  he  is  not  trustee  in  any  other  light. 
Hence,  under  the  statute  giving  equity  jurisdiction  of  trusts 
to  the  Supreme  Court  in  Massachusetts,  the  assignee  of  a 
mortgagor  cannot  maintain  a  bill  for  injunction  against  the 
mortgagee,  who  is  proceeding  to  recover  possession  at  law ; 
and  for  a  decree,  that  the  mortgage  be  cancelled.^  So  a 
mortgagee,  notwithstanding  his  relation  to  the  mortgagor, 
may  buy  the  land,  under  a  mortgage  sale,  at  a  low  price,^ 
which  a  trustee  would  not  be  permitted  to  do.  The  princi- 
ples applicable  to  dealings  between  trustees  and  cestids  que 
trust,  that  such  dealings  are  not  prohibited,  but  are  watched 
by  the  Court  with  great  jealousy,  and  that  the  burden  is  on 
the  trustee  to  show  that  they  were  fair  and  reasonable,  do 
not  apply  to  the  case  of  mortgagor  and  mortgagee.  Depend- 
ence, and  the  duty  of  protection,  are  not  involved  in  their 
relation  ;  though  it  is  a  circumstance  which  always  creates 
suspicion.^ 

7.  In  regard  to  the  distinction  between  a  mortgage  and  a 
trust  already  referred  to,  that  a  mortgagee  may  enforce  his 
right  by  adverse  suit,  in  invittim.,  against  the  mortgagor,  it  is 
further  said,  that  a  trustee  cannot  claim  against  the  cestui, 
because  these  parties  have  always  an  identity  and  unity  of 
interest,  and  are  never  opposed  in  contest  to  each  other.     In 

1  Hoffman  v.  MackaU,  5  Ohio,  (N.  v.  Putnam,  i  Pick.  130;  l^astnian  v. 
S.)  124.  Foster,  8  Met.  19  ;  King  c.  llie  btate, 

2  Hunt  V.  Maynard,  6  Pick.  489    See  &c.,  7  Cush.  7  8  15. 
Hammonds  v.  Hopkins,  3  Yerg.  528 ;  ^  Mott  v.  W  alklej  3_Iulw  590. 
Clarke  v.  Sibley,  13  Met.  213;  Putnam  *  Chapman  r.  Mull,  /  Ire.l.  Lq.  ..»-. 


392  THE   LAW    OF   MORTGAGES.  [CH.  XV. 

general,  a  trustee  is  not  allowed  to  deprive  his  cestui  que  trust 
of  the  possession  ;  but  chancery  never  interposes  to  prevent 
the  mortgagee  from  taking  possession  ;  and,  when  he  obtains 
possession,  he  acts,  not  as  a  trustee,  but  independently  and 
adversely,  for  his  own  use  and  benefit.  Equity  stops  a  trus- 
tee from  dispossessing  his  cestui,  because  it  would  be  a  breach 
of  trust,  whereas,  in  the  case  of  a  mortgagee,  this  proceeding 
is  in  strict  conformity  to  his  contract,  and  any  impediment 
to  it  w^ould  be  a  direct  violation  of  such  contract.  So  also 
chancery  does  not  impede,  but  assist,  the  mortgagee,  in 
obtaining  an  absolute  title  by  foreclosure.^ 
.  8.  In  the  case  of  Pawlett  v.  The  Attorney- General,-  Hale, 
Chief  Baron,  said  :  —  "  There  is  a  diversity  betwixt  a  trust 
and  a  power  of  redemption,  for  a  trust  is  created  by  the 
contract  of  the  party,  and  he  may  direct  it  as  he  pleaseth  ; 
and  he  may  provide  for  the  execution  of  it,  and  therefore  one 
that  comes  in  in  the  post  shall  not  be  liable  to  it  without  ex- 
press mention  made  by  the  party.  But  a  power  of  redemp- 
tion is  an  equitable  right  inherent  in  the  land,  and  binds  all 
persons  in  the  post  or  otherwise.  Because  it  is  an  ancient 
right,  which  the  party  is  entitled  to  in  equity.  And  although 
by  the  escheat  the  tenure  is  extinguished,  that  will  be  noth- 
ing to  the  purpose,  because  the  party  may  be  recompensed  for 
that  by  the  Court,  by  a  decree  for  rent,  or  by  part  of  the  land 
itself,  or  some  other  satisfaction.  And  it  is  of  such  consid- 
eration in  the  eye  of  the  law,  that  the  law  takes  notice  of  it, 
and  makes  it  assignable  and  devisable." 

9.  So,  it  is  said,  the  relation  of  mortgagor  and  mortgagee 
stands  upon  grounds  peculiar  to  itself.  It  is  not  the  case  of 
an  ordinary  express  trust,  nor  to  be  governed  by  the  same 
rules.  The  mortgagee  has  a  right  to  the  possession  of  the 
property.  He  holds  it  for  himself  from  the  first,  and  not  for 
the  mortgagor.  The  mortgagor's  right  to  redeem  does  not 
depend  upon  the  mortgagee's  possession.     He  may  file  his 


»  2  Story's  Eq.  278,  n.  3.  1  Dev.  Cli.  225;  i-.  Bennett,  lb. 

2  Ilanlros,  4(59  ;  Tucker  v.  Tluirs-     444. 
tan,  IT  Vls.  133;  Benzcin  v.  Lenoir, 


CH.  XV.]  EQUITY    OF   REDEMPTION.  393 

bill  to  redeem,  as  well  if  he  have  possession  of  the  ijiopcrtv 
himself,  as  if  the  mortgagee  possess  it.^ 

10.  Conformably  to  the  principles  above  stated,  a  convey- 
ance in  trust  to  pay  debts,  and  to  sell  the  premises,  if  neces- 
sary, to  pay  the  debts,  and,  after  the  debts  are  paid,  in  trust 
for  one  of  the  grantors,  is  not  a  mortgage,  and,  it  seems,  need 
not  be  registered,  as  against  a  subsequent  assignment  of  the 
grantors,  under  the  bankrupt  law.^  And,  on  the  other  hand, 
under  the  laws  of  Georgia,  a  mortgage  is  not  a  conveyance 
in  trust,  but  an  incumbrance  created  to  pay  a  debt ;  neither 
is  it  an  assignment,  conveyance,  or  transfer,  under  the  act  of 
1818,  nor  does  it  come  within  the  provisions  of  that  act.'^ 
So  a  conveyance,  in  trust  that  the  estate  stand  chargeable 
with  a  certain  sum  and  interest,  and  subject  thereto  in  trust 
for  a  third  person,  with  a  power  of  sale  by  the  purchaser 
upon  non-payment  after  notice,  was  held  not  to  be  a  mort- 
gage, upon  which  a  bill  for  foreclosure  could  be  maintained, 
though  the  Court  would  aid  in  effecting  a  sale  of  the  prop- 
erty.* 

11.  But  a  covenant,  signed  by  both  parties  to  a  deed,  at 
the  same  time  with  the  deed,  and  reciting  "  an  understanding 
and  agreement  that  the  grantee  should,  as  soon  as  possible, 
sell  the  land  for  the  best  possible  price,  retain  a  sum  due  to 
him  from  the  grantor,  and  pay  him  the  residue,"  constitutes, 
with  the  deed,  a  conveyance  in  trust,  in  the  nature  of  a  rnort- 
gage.5  (b)      And  if  the  grantee  violate  his  covenant  to  sell  the 

1  Per  Green,   J.,   Wood    v.   Jones,  ^  geals  v.  Casliin,  2  Geo.  Decis.  76. 
Meigs,  517.  *  Sampson  v.  Pattison,  1  Hare,  533. 

2  McMenomy  v.  Murray,  8  .Johns.  ^  Ogden  v.  Grant,  6  Dana,  473. 
Ch.  435. 


(b)  On  the  other  hand,  one  receiving  property  I'n  trust  may  bind  himself 
to  account  for  it  by  an  informal  mortgage.  A.  received  property  of  B.,  to 
invest  it  for  B.'s  benefit,  and  gave  him  a  paper,  not  in  form  a  mortgage' 
acknowledging  such  receipt,  and  stating  that  certain  property  of  his  was 
mortgaged  to  secure  B.  Upon  the  death  of  A.,  insolvent,  held,  a  mortgage. 
Mennude  v.  Delaire,  2  Desaus.  564. 


394  THE    LAW    OF    MORTGAGES.  [CH.    XV. 

land,  the  grantor  may  recover  the  actual  damages  by  a  suit 
on  the  covenant,  or  compel  performance  by  a  bill  in  equity ; 
but  cannot  elect  to  recover  the  value  of  the  land,  deducting 
the  debt,  thus  converting  a  conditional  into  an  absolute  con- 
veyance.' (c) 

1  Ogden  V.  Grant,  6  Dana,  473. 


(c)  It  is  the  right  and  duty  of  a  trustee  in  insolvency  to  sell  the  mortgaged 
property  of  the  insolvent,  and  pay  off  the  liens  and  incumbrances  thereon; 
though  the  transfer  made  to  secure  a  debt  is  in  the  nature  of  a  trust.  Bank, 
&c.  V.  Whyte,  1  Md.  Ch.  536. 

Deed  to  A.,  to  be  held  to  his  own  use  until  he  should  be  paid  a  certain 
sum,  advanced  by  him  for  B.,  the  purchaser,  after  which  he  was  to  stand 
seised  to  the  use  of  B.,  as  if  the  title  had  been  made  directly  to  B.  A. 
brought  ejectment  against  B.,  to  compel  payment  of  the  moneys  advanced, 
and  judgment  was  confessed,  to  be  released  on  payment  of  a  certain  sum 
in  a  certain  time.  For  non-payment,  A.  took  possession,  and  B.  brought 
ejectment.  Held,  A.  had  the  right  to  take  possession,  and  hold  until  reim- 
bursed, and  not  as  absolute  owner ;  that  the  deed  to  A.  was  not  properly  a 
mortgage,  but  a  deed  of  trust,  In  which  the  cestui  que  trust  had  the  same 
rl_"ht  which  a  mortgagor  has  against  a  mortgagee  ;  that  A.  was  liable  to 
account  for  the  profits,  towards  the  debt ;  that  It  was  not  necessary  for  B.  to 
tender  the  debt  in  money  to  A.  before  bringing  his  suit ;  that  B.  was  entitled 
to  recover,  if  the  clear  profits  of  the  land,  since  it  came  into  A.'s  possession, 
ecjualled  the  judgment  and  Interest;  If  those  profits  amounted  to  so  much 
before  suit  brought,  B.  could  recover  unconditionally  ;  but  if  not  to  so  much 
until  after,  he  could  recover,  on  condition  that  he  pay  all  the  costs  of  the 
suit  before  taking  out  execution.     Hewitt  v.  Huling,  11  Penn.  27. 

The  owners  of  several  estates,  being  jointly  interested  in  the  water-power 
connected  therewith,  formed  a  company,  and  entered  Into  an  agreement,  by 
indenture,  in  which  each  covenanted,  for  himself  and  his  personal  represen- 
tatives or  assigns,  with  the  others  and  their  respective  personal  representa- 
tives or  assigns,  and  his  and  their  respective  estates,  for  the  faithful  perform- 
ance of  the  conditions  and  provisions  of  said  indenture,  "  meaning  and  in- 
tending to  create  a  lien  upon  and  to  bind  "  their  said  estates,  so  far  as  "  they 
n)ight  in  law  or  equity  do  the  same,  and"  their  "  several  heirs,  executors, 
administrators,  or  assigns,  so  far  as  said  estates  were  concerned,  and  to  the 
extent  thereof,  and  no  further,  as  fully  and  absolutely  and  as  far  as  "  they 
might  "  do  the  same,  either  in  law  or  equity,  for  the  faithful  discharge  and 
fulfilment  of  all  the  llabHIties  of  said  company,  and  of  the  requirements  and 


CH,  XV.]  EQUITY    OF   REDEMPTION.  395 

12.  With  regard  to  the  parties^  who  are  allowed  1o  redeem 
a  mortgage;  in  general,  any  one  may  do  it  who  is  eiiiitk-d 
to  the  legal  estate  of  the  mortgagor,  or  claims  a  subsisting 
interest  or  lien  under  him.  Lord  Eldon  remarked,^  that  a 
mortgagee  shall  hold  the  land  against  all  persons,  who  fail  to 
show  a  clear  right  of  redeeming.  It  is  said,  persons  entitled 
to  redeem  in  equity  are  those,  who  within  the  time  limited 
in  the  mortgage  would  have  been  entitled  to  redeem  at 
law.2  So  also,  that  by  agreement  a  right  to  redeem  may 
be  reserved  to  a  stranger? 

13.  It  is  held  that  the  grantee  of  a  mortgagor  may  file  a 
bill  to  redeem  and  have  the  mortgage  satisfied,  though  a 
part  of  the  mortgage  debt  has  become  due  to  other  parties. 
And  where  a  party  acquires  a  claim  to  rents  and  profits,  sub- 
sequently to  a  decree  for  the  sale  of  property,  in  favor  of  one 
who  has  become  entitled  to  part  of  the  money  due  on  the 
mortgage,  he  may  set  up  such  claim  in  a  bill  to  redeem.* 

14.  Judge  Story  says  :  —  "  The  equity  of  redemption  is  not 
only  a  subsisting  estate  and  interest  in  the  land,  in  the  hands 
of  the  heirs,  devisees,  assignees,  and  representatives  (strictly 
so  called)  of  the  mortgagor ;  but  it  is  also  in  the  hands  of 
any  other  persons,  who  have  acquired  any  interest  in  the 

1  James  v.  Biou,  3  Swanst.  237  ;  Pur-        ^  Skeffington  v.  Whitehurst,  3  Y.  & 
vis  V.  Brown,  4  Ired.  Eq.  413 ;  Boar-     Coll.  2. 

man  v.  Catlett,  13  Sm.  &  M.  149  ;  Scott        ^  Purvis  v.  Brown,  4  Ired.  Eq.  413. 
t).  Henry,  8  Eng.  112.  *  McConnel  v.  Holobush,  11   Illin. 

61.     ■ 


provisions  of  said  indenture."  The  plaintiff,  a  party  to  the  indenture,  hav- 
ing afterwards  incurred  expense,  under  its  provisions,  for  the  purpose  of 
increasing  the  water-power,  in  which  all  the  parties  to  the  indenture  were 
jointly  interested,  brings  a  bill  in  equity  against  third  persons,  to  whom  some 
of  the  parties  had  conveyed  their  estates,  praying  that  they  might  be  held 
to  pay  him  their  shares  and  proportions  of  the  expense,  and  for  general 
relief.  Held,  the  indenture  was  not  a  legal  mortgage,  but  only  an  equitable 
mortgage  ;  that,  if  it  created  any  lien,  implying  a  trust,  it  was  a  trust  sui 
generis,  in  the  nature  of  an  equitable  mortgage,  of  which  the  Court  had  no 
jurisdiction  ;  and  the  bill  was  dismissed.     Clarke  v.  Sibley,  13  Met.  210. 


396  THE   LAW    OF   MORTGAGES.  [CH.  XV. 

lands  mortgaged,  by  operation  of  law  or  otherwise,  in  privity 
of  title.  Such  persons  have  a  clear  right  to  disengage  the 
property  from  all  incumbrances,  in  order  to  make  their  own 
claims  beneficial  or  available.  Hence,  a  tenant  for  life,  a 
tenant  by  the  curtesy,  a  jointress,  a  tenant  in  dower  in  some 
cases,  a  reversioner,  a  remainder-man,  a  judgment  creditor, 
though  an  execution  has  not  issued,  nor  the  land  been  sold,  {d) 
a  tenant  by  elegit,  and  indeed  every  other  person,  being  an 
incumbrancer,  or  having  a  legal  or  equitable  title  or  lien 
therein,  may  insist  upon  the  redemption  of  the  mortgage,  in 
order  to  the  due  enforcement  of  their  claims  and  interests 
respectively  in  the  land.  When  any  such  person  does  so 
redeem,  he  or  she  becomes  substituted  to  the  rights  and  inter- 
ests of  the  original  mortgagee  in  the  land,  exactly  as  in  the 
civil  law.  And  in  some  cases  (as  we  have  already  seen)  a 
further  right  of  priority  by  tacking  may  sometimes  be  acquired 
beyond  what  the  civil  law  allowed.  Hence  it  is,  that  a  mere 
annuitant  of  the  mortgagor,  (who  has  no  interest  in  the  land,) 
has  no  title  to  redeem."  ^  So  an  unsealed  contract  gives  no 
right  to  redeem.^  But  even  a  person  claiming  under  a  prior 
or  subsequent  voluntary  conveyance  may,  as  against  the 
mortgagee,  redeem.^ 

15.  The  assignee  of  a  bankrupt  may  redeem.  Even  a 
prowling  assignee,  who  purchases  an  equity  which  has  been 
abandoned  fifteen  years,  for  a  trifling  sum.*  So  a  tenant  for 
years.^     Thus,  where  one  co-tenant  conveys  a  parcel  of  the 

1  2  Story's  Eq.  §  1023 ;  Upham  v.        *  1  Pow.  262,  a,  263,  a. 

Brooks,  2  W.  &  M.  407 ;  Brainerd  v.  ^  1   Pow.   162,   b. ;   Rand    v.    Cart- 
Cooper,  10  N.  Y.  (6  Seld.)  356.  wright,  1  Cli.  Cas.  59;  Loud  v.  Lane, 

2  Porter  v.  Read,  1  Appl.  363.  8   Met.   517  ;    Bacon   v.  Bowdoin,  22 

3  2  Story's  Eq.  §  1023,  n.  Pick.  401. 


{d)  Kent  v.  Laffan,  2  Cal.  595.  By  filing  a  bill  against  mortgagee  and 
mortgagor.  Hitt  v.  Holliday,  2  Litt.  334.  A  creditor,  until  he  has  recov- 
ered judgment  for  his  debt,  cannot  come  into  chancery  for  the  foreclosure 
of  mortgages.  Warner  v.  Everett,  7  B.  Men.  262.  Nor  can  a  bond  cred- 
itor redeem,  till  he  recovers  a  judgment.  1  Pow.  263,  n.  The  judgment 
creditor  of  a  deceased  mortgagor  cannot  redeem,  till  after  ^jZene  admin,  has 
been  pleaded,  and  judgment  rendered  against  the  heir  upon  sc.  fac.  Elliot 
V.  Patton,  4  Yerg.  10. 


en.  XV.]  EQUITY    OF   REDEMPTION.  397 

land  by  metes  and  bounds,  takes  back  a  mortgage,  and  as- 
signs it,  a  lessee  for  years  from  the  mortgagor  may  redeem 
the  mortgage  from  the  assignee,  if  he  has  no  title  under  the 
other  co-tenant.i  Qq  ^^  assignee  of  a  term  for  years  in  a 
part  of  the  land  mortgaged  may  redeem  the  whole,  and 
claim  an  assignment  of  the  mortgage,  and,  if  it  is  recorded, 
an  acknowledgment  of  such  assignment.-  So,  it  seems,  the 
holder  of  an  easement  may  redeem.  In  New  Hampshire,  an 
attaching  creditor.-^  (e)  So  the  purchaser  under  a  sale  upon 
a  second  mortgage  may  redeem  the  first.*  So  one  in  posses- 
sion under  a  parol  contract  to  convey,  if  entitled  to  specific 
performance,  except  as  against  bond  fide  purchasers  without 
notice.^ 

16.  It  has  been  held,  that  one  having  an  equitable  lien 
may  redeem ;  as,  for  instance,  a  widow,  claiming  a  settle- 
ment for  life  under  marriage  articles.^ 

17.  It  is,  however,  the  general  rule  of  law,  that  the  person 
having  a  legal  title  to  the  estate  is  the  party  authorized  to 
redeem.  Hence  a  cestui  que  trust  is  not  the  proper  plaintiff 
in  a  bill  for  redemption,  unless  some  special  cause  be  shown 
for  not  bringing  the  suit  in  the  name  of  the  trustee. 

18.  Upon  this  subject  Judge  Stbry  remarks  as  follows:  — 
"  The  trustees  under  the  will  were  invested  with  the  legal 
estate,  and  consequently  they  are  the  proper  parties  to  file  a 
bill  to  redeem.  It  does  not  appear  from  the  bill,  that  the 
plaintiffs  are  really  entitled  to  anything  under  the  will ;  for 
it  is  not  alleged  that  anything  would  or  did  remain  after 
satisfying  the  prior  trust.  If  it  did,  still  the  trustees,  being 
owners  of  the  legal  estate,  are  solely  entitled  to  redeem,  un- 

1  Bacon  v.  Bowdoin,  2  Met.  591.  '"  Lowrej  v.  Tew,  8  Barb.  Cli.  407. 

2  Averill  r.  Taylor,  4  Seld.  44.  See  §  20. 

«  N.  H.  St.  1845,  -233.  "  Haynier  v.  Hayracr,  2  Veiitr.  343. 

*  FanneU  v.  Murpliy,  2  Wis.  533. 


(e)  But  a  creditor  who  has  ioreclosed  a  mortgage,  and  obtained  a  decree 
for  sale,  does  not  thereby  become  a  judgment  creditor,  and  entitled  to  re- 
deem from  the  purchaser,  under  the  Alabama  statute  of  1842.  Branch 
Bank,  &c.  v.  Furness,  12  Alab.  3G7. 

VOL.  I.  34 


398  THE    LAW    OP    MORTGAGES.  [CH.  XV. 

less  they  have  refused  to  redeem,  or  have  colluded  with  the 
mortgagee,  or  some  other  impediment  is  shown  to  the  redemp- 
tion on  their  part.  The  bill  ought  to  have  contained  specific 
allegations  on  this  head,  stating  a  case,  which  would  estab- 
lish a  residuary  interest  in  the  plaintiffs,  and  a  ground  for 
their  claim  to  redeem,  instead  of  the  trustees.  The  trustees 
are  made  parties,  and  have  answered,  and  there  is  a  general 
charge  of  confederacy  against  them.  But  this  will  not  sup- 
ply the  defect  of  proper  allegations  to  establish  the  plaintiff's 
claim  to  redeem.  The  trustees  must  be  called  upon  to 
answer,  and  must  answer  specifically  to  such  matters,  as  will 
justify  the  Court  in  acting  without  or  adversely  to  them."  ^ 

19.  The  lord  of  a  manor,  taking  by  escheat,  on  the  death  of 
a  tenant  without  heirs,  the  fee-simple  of  lands  holden  of  the 
manor,  but  subject  to  a  demise  by  way  of  mortgage  for  a 
term  of  years  created  by  the  tenant,  is  entitled  in  equity,  as 
against  the  mortgagee,  to  redeem  the  teum.''^ 

20.  A  mere  personal  cla,im,  which  gives  no  actual,  vested 
title  to  the  land,  will  not  be  sufficient  ground  for  redeem- 
ing a  mortgage,  although  the  party  may  be  greatly  inter- 
ested in  having  it  discharged.  Thus  the  obligee,  in  a  bond 
to  convey  a  mortgaged  'estate,  has  no  right  to  redeem.^ 
( Supra,  15.)  In  White  v.  Parnther,*  Lord  Wynford  remark- 
ed, with  reference  to  the  claim  of  an  annuitant  to  redeem 
the  mortgage  :  —  "If  so,  every  legatee  of  the  mortgagor  must 
have  the  same  right  of  insisting  that  the  mortgage  debt  is 
satisfied,  and  of  calling  on  the  mortgagee  to  give  him  an 
account  of  the  proceeds  of  the  estate  from  the  time  of  the 
death  of  the  mortgagor,  a  period  of  above  fifty  years.  If 
creditors  or  legatees  of  the  mortgagor  had  the  right  of  calling 
mortgagees  to  separate  accounts,  every  mortgagee  would  be 
liable  to  be  ruined,  by  the  different  suits  that  might  be  insti- 
tuted against  him.  But  from  the  principle  laid  down  in  the 
case  of  Troughton  v.  Binkes,  (6  Ves.  572,)  and  the  cases 

1  Per  Story,  J.,  Dexter  v.  Arnold,  1  '^  M'Dougald    v.    Capron,    7   Gray, 

Sumn.  Ill,  112.  278. 

■■'  Viscount,  &c.  V.  Morris,  3  Hare,  *  1  Knapn,  229. 
394. 


CH.  XV.]  EQUITY   OF    REDEMPTION.  399 

referred  to  by  the  Master  of  the  Rolls  in  his  judgment  in  that 
case,  I  think  that  the  mortgagor  or  his  heirs  only  can  sue 
the  mortgagee  for  an  account  and  redemption,  unless  it  can 
be  shown,  that  they  and  the  mortgagee  are  in  collusion,  to 
prevent  creditors  or  legatees  from  recovering  what  is  due  to 
them  from  the  mortgagor's  property."  So,  in  Grant  v.  Duane,i 
Thompson,  J,,  says  :  —  "  If  the  respondents  have  shown  no 
interest  in  themselves,  or  a  right  to  redeem  the  mortgage  on 
their  own  account,  or  on  account  of  others,  with  whom  some 
connection  is  showm,  and  whose  interest  they  have  a  right  to 
represent,  their  claim  cannot  be  supported,  notwithstanding 
some  other  person  might  have  a  right  to  enforce  the  same 
claim.  It  cannot  be  allowed  to  them  to  speculate  on  the 
claims  of  others,  and  redeem  at  their  peril,  and  then  litigate 
with  those  who  may  have  the  right.  No  person  can  come 
into  a  Court  of  Equity  for  a  redemption  of  a  mortgage,  but 
but  he  who  is  entitled  to  the  legal  estate  of  the  mortgagor, 
or  claims  a  subsisting  interest  under  him."  So  one  having 
a  deed  from  the  mortgagor  subsequent  to  the  original  mort- 
gage, assisting  in  the  entry  of  the  mortgagee,  and  the  con- 
veyance by  him,  without  giving  notice  of  his  claim,  and  who 
has  neither  paid  nor  tendered  anything  to  the  mortgagee  or 
his  assignee,  is  not  entitled  to  redeem,  or  have  a  release  of 
the  premises,  after  foreclosure,  by  paying  the  amount  men- 
tioned in  the  assignee's  personal  contract  with  the  mort- 
gagor.2 

21.  While  all  parties  interested  in  the  land  are  thus  pro- 
tected in  the  right  of  redemption,  it  is  also  strictly  enforced 
against  all  who,  by  w'hatever  title,  succeed  to  the  rights  of 
the  mortgagee.  Thus,  in  England,  the  king-  is  not  privileged 
from  this  claim. 

22.  The  case  of  Pawlett  v.  The  Attorney- General  ^  was  a 
bill  to  redeem  a  mortgage.  The  plaintiff  mortgaged  to  Lud- 
low, and  entered  into  a  statute  and  recognizance  to  perform 

1  9  Johns.  611.  '  "ard.  '1G5. 

2  Shapley  v.  Rangeley,  1  W.  &  M. 
213. 


400  THE    LAW    OF    MORTGAGES.  [CH.    XY. 

the  covenants  of  the  mortgage  and  pay  the  debt  at  a  certain 
day,  which  was  past.  The  mortgagee  died,  having  demised 
uU  his  goods,  debts,  and  personal  estate  to  his  executor. 
The  son  and  heir  of  the  mortgagee  having  been  attainted  of 
high-treason,  the  king  seizes,  and  the  executor  extends  the 
plaintiff's  lands  upon  the  recognizance,  who  thereupon  ex- 
hibits his  bill  against  the  king  and  the  executor,  suggesting 
that  he  was  prevented  by  the  plague  from  paying  at  the  time 
and  place  appointed,  and  that  afterwards  the  mortgagee 
accepted  the  interest  and  waived  the  forfeiture.  The  ques- 
tion was,  upon  demurrer  to  the  bill  whether  redemption 
should  be  allowed  against  the  king.  Hale,  Chief  Baron, 
said :  ^ — "This  is  a  case  of  great  concern,  and  deserves 
great  consideration.  It  was  made  a  question  in  this  pres- 
ent Parliament  in  the  House  of  Lords  in  the  Earl  of  Cleve- 
land's case ;  first,  whether  or  no  there  be  a  right  of  redemp- 
tion in  this  case  against  the  king  ;  and  secondly,  if  there  be, 
what  remedy  must  be  taken.  And  answered,  as  I  take  the 
law^  to  be,  that  in  natural  justice  redemption  of  a  mortgage 
lies  against  the  king.  But  I  am  of  opinion  that  the  king 
cannot  be  compelled  to  reconvey ;  but  that  an  ajiioveas 
manum  only  lies  in  such  case.  The  matter  of  redemption,  it 
seems,  is  not  the  main  business  in  the  case ;  for  Mr.  Attor- 
ney-General offers  to  give  way  to  a  redemption,  upon  pay- 
ment of  the  money.  But  the  point  is,  who  shall  have  the 
money,  whether  the  executor  and  devisee,  or  the  king."  The 
report  does  not  show  any  definite  decision  of  this  question. 
The  Chief  Baron  afterwards  remarks :  — "  The  statute  of 
33  Hen.  8,  c.  39,  is  to  be  considered,  which  gives  relief  in 
equity  against  the  king.  And  I  conceive  clearly,  that  in  this 
case,  the  executor  would  be  relieved  against  the  heir  for  the 
money ;  because  in  common  estimation  it  is  but  a  personal 
estate."  "  Baron  Atkyns  was  strongly  of  opinion,  that  the 
party  ought  in  this  case  to  be  relieved  against  the  king, 
because  the  king  is  the  fountain  and  head  of  justice  and 
equity,  and  it  shall  not  be  presumed,  that  he  will  be  defec- 

1  Hard.  4G7. 


401 


honor 


en.  XV. I  EQUITY    OF    REDEMPTION. 

tive  in  either.     And  it  would  derogate  from  the  king's  h 

to  imagine,  that  what  is  equity  against  a  common  person 
should  not  be  equity  against  him."  ^  (/) 

23.  The  question,  who  has  the  right  of  redemption,  often 
becomes  important  after  the  death  of  the  rnort'^a^or 

24.  In  general,  in  case  of  the  mortgagor's  death,  his  heir 
or  assignee  alone  can  redeem.'-^  (g-) 

25.  Where  redemption  is  sought  by  the  heirs  of  the  mort- 
gagor, Judge  Story  remarks  as  follows,  with  regard  to  the 
proper  form  of  proceeding :  —  "  In  general,  it  is  certainly 
proper  that  all  the  heirs  of  the  mortgagor  should  be  before 
the  Court,  before  a  redemption  is  decreed.  And  this  for 
two  reasons:  first,  that  their  rights  and  interests  may  not 
be  affected  by  any  change  of  the  title  without  their  consent ; 

1  Hard.  469.  Elliot  v.  Patton,  4  Ycrg.  10 ;  Shaw  v. 

2  Sniith  V.  Manning,  9  Mass.  422 ;     Hoadley,  8  Blackf.  165. 


(/)  In  the  case  of  Viscount,  &c.  v.  Morris,  3  Hare,  394,  it  was  contended, 
that  opinions  had  been  expressed  in  the  case  of  Burgess  v.  Wheate,  1  Ed. 
205,  206,  adverse  to  these  views  of  Lord  Hale.  But  Vice-Ciiancclior  Wi- 
gram  says,  (3  Hare,  405)  :  —  "  I  do  not  understand  any  of  the  judges  iu  Bur- 
gess V.  Wheate  to  have  expressed  an  opinion  adverse  to  what  Lord  Hale  says, 
in  the  case  in  Hardres,  as  to  the  nature  of  an  equity  of  redemption.  In  that 
part  of  Sir  Thomas  Clarke's  judgment  in  which  he  distinguishes  Sand's  case 
from  PaAvlett  v.  The  Attorney-General,  as  well  as  in  a  subsequent  part  of 
the  judgment,  he  appears  to  me  to  approve  of  Lord  Hale's  distinction,  and 
to  say  that  Lord  Nottingham  approved  of  it  also.  Lord  Mansfield  certainly 
approved  of  what  Lord  Hale  said  in  Pawlett's  case ;  and  the  Lord  Keeper 
although  he  said  he  believed  that  what  Lord  Hale  laid  down,  and  Baron 
Atkyns  approved,  in  Pawlett's  case,  had  never  been  decided,  remarked 
that  he  hoped  the  law  was  so  settled." 

(g)  In  Georgia,  a  rule  for  foreclosure,  after  the  death  of  the  mortgagor, 
must  be  made  upon  the  executor  or  administrator,  not  the  heirs.  Miigruder 
V.  Offut,  Dudl.  22  7.  In  Arkansas,  the  Court  may  order  the  executor  to 
redeem.  Ark.  L.  139.  Upon  a  decree  of  foreclosure  against  heirs,  the  sur- 
plus proceeds  of  sale  go  to  them.  Shaw  v.  Hoadlcy,  8  Blackf  1G5.  In  a 
suit  to  redeem  against  a  devisee,  an  account  of  the  rents  received  by  the 
devisor  may  be  obtained,  without  his  being  represented  on  the  record.  Tru- 
lock  V.  Robey,  15  Sim.  277. 

.34* 


402  THE    LAW    OF    MORTGAGES.  [CH.  XV. 

and  secondly,  that  they  may  be  parties  to  the  account,  and 
the  mortgagee  or  his  heirs  and  representatives  not  be  har- 
assed by  a  new  suit  for  a  new  account."  ^ 

26.  In  Wells  v.  Morse,^  it  was  objected  to  a  bill  in  equity 
for  redemption  brought  by  an  heir,  that  the  creditors  of  the 
mortgagor  (the  estate  being  insolvent)  were  the  proper  par- 
ties to  redeem.  The  Court  say  :  —  "  The  estate  descended, 
doubtless,  subject  to  the  lien  of  the  administrator  in  behalf 
of  creditors.  But  if  the  right  of  the  creditors  has  never  been 
asserted,  although  more  than  twenty  years  have  elapsed,  it 
cannot  now  be  asserted,  in  this  collateral  way,  to  bar  the 
heir.  Whether  that  right  will  ever  be  asserted,  and  if  so, 
whether  their  claims  are  not  barred  by  lapse  of  time,  are 
questions  proper  to  be  decided,  when  they  shall  be  duly  pre- 
sented. We  do  not  deem  it  necessary  to  determine  what 
their  rights  may  be,  because  we  do  not  see  how  their  rights 
are  to  be  affected  by  this  proceeding.  They  can  have  no 
claim  for  anything  more  than  the  value  of  the  equity  of 
redemption,  and  if  a  redemption  is  allowed  in  this  case,  they 
may  pursue  their  equity  in  the  hands  of  the  heir.  This 
Court  will  keep  the  mortgage  on  foot,  if  necessary  for  the 
purposes  of  justice,  although  the  interest  of  the  mortgagee 
and  the  equity  of  redemption  unite  in  the  same  person. 
There  will  be  no  difficulty  in  treating  the  plaintiff  as  mort- 
gagee, and  the  creditors  as  entitled  to  the  right  of  redemp- 
tion, should  the  case  hereafter  require  it." 

27.  In  general,  one  interested  cannot  redeem  a  mortgage, 
without  paying  the  whole  debt.  "  The  mortgagor  or  his 
assignee  must  pay  the  whole  liability  charged  upon  the 
mortgage  before  he  will  be  allowed  to  redeem,  unless  he  can 
show  that  equity  requires  the  other  party  to  abate  some  por- 
tion thereof  by  reason  of  his  liability  to  contribute  to  the 
payment  of  the  same."  ^  And  the  whole  property  must  be 
redeemed.*     If  the  party  redeeming  has  only  a  partial  in- 

1  Dexter  i;.  Arnold,  1   Sumn.   112,        3  p^r  Dewey,  J.,  Crafts  v.   Crafts, 
113.  13  Gray,  363. 

2  11  Verm.  17.  ^  Boqut  v.  Coburn,  27  Barb.  233. 


CH.   XV.]  EQUITY    OF   REDEMPTION.  403 

terest  in  the  property,  which  might  be  defeated  by  the  mort- 
gage, he  will,  at  least  in  equity,  stand  in  place  of  the.  party, 
whose  interest  in  the  estate  he  discharges,  and  will  hold  it 
till  the  others  interested  with  him  pay  their  shares  of  the 
debt,  according  to  the  proportional  value  of  the  respective 
portions.^  And  he  may  claim  an  assignment  of  the  mort- 
gage.2  Thus  this  rule  applies  to  a  purchaser  of  a  portion 
of  the  mortgaged  property.^  So  also,  to  all  who  are  in  any 
way  interested  in  the  equity  of  redemption,  as  owners  of 
distinct  parcels  of  the  land,  or  as  tenants  in  common.*  (h) 
So,  even  where  the  party  paying  the  mortgage  has  taken  a 
formal  discharge  of  it.^  And  the  mortgagor  cannot  claim  to 
have  a  part  of  the  land  estimated  for  the  purpose  of  payment, 
and  thereby  entitle  himself  to  redeem  the  rest  by  paying  the 
balance  of  the  debt.^ 

28.  So  the  whole  debt  must  be  paid,  though  the  whole  or 
a  part  of  it  has  been  separated  from  the  mortgage,  and  is 
owned  by  a  different  person.'^  But  if  a  mortgaged  estate  is 
severed,  and  a  part  of  it  comes  to  an  assignee  of  the  mort- 
gage, the  holder  of  the  other  part  may  redeem  by  paying  a 
proportional  part  of  the  debt.  So  where,  a  part  of  a  mort- 
gaged estate  having  been  improved  by  the  erection  of  a  mill 
and  its  appurtehances,  the  estate  was  subsequently  conveyed 
to  different  purchasers  ;  the  improved  part  passing  to  A.,  and 
the  other  part  to  B,,  w^ho  was  also  the  assignee  of  the  mort- 
gage :  held,  the  amount  to  be  paid  by  A.,  in  order  to  redeem 

1  1  Pow.  281,  a.  n. ;  Ehvys  v.  Thomp-  *  Hubbard  v.  Ascutney,  &c.  20  Verm, 
son,  9  Mod.  396  ;  Roswell  v.  Simonton,  402.  See  Brown  v.  Worcester,  &c.  8 
2  Cart.  516 ;  MuUanphy  v.   Simpson,     Met.  47. 

4  Mis.  319.  "  Towle  v.  Hoit,  14  N.  II.  61. 

2  AveriU  v.  Taylor,  4  Seld.  44.  «  Spring  v.  Haines,  8  Sbepl.  120. 

3  Smith  V.  Kelley,  27  Maine,  237.  '  Johnson  v.  Candage,  31  Mamc,  M. 


(h)  It  is  said,  that  where  one  person  pays  Llie  debt,  but  another  cannot 
in  equity  take  the  land  from  him  without  repayment ;  the  debt  still  subsists, 
for  the  purpose  of  upholding  the  mortgage.  Robinson  v.  Leavitt,  7  N.  II. 
97.  On  the  other  hand  it  is  said,  one  mortgagor  cannot  redeem  and  take  a 
conveyance  of  the  land,  without  consent  of  the  other.  Porter  v.  Clements, 
3  Pike,  364 ;  MuUanphy  v.  Simpson,  4  Mis.  319. 


404  THE   LAW    OF   MORTGAGES.  [CH.   XV. 

his  part,  must  be  apportioned  according  to  the  improved 
value.^  And  the  rule  in  question  will  not  necessarily  oper- 
ate to  debar  a  party  from  redeeming  a  part  of  the  land,  be- 
cause the  right  of  redeeming  another  part  has  been  lost.  In 
Dexter  v,  Arnold,^  Judge  Story  says  :  —  "It  may  be  suggested 
that  there  cannot  be  any  redemption  of  a  mortgage,  unless 
of  all  the  premises  contained  in  the  original  mortgage  deed ; 
and  -therefore  if  there  be  a  bar  to  any  part,  that  operates  as  a 
bar  to  the  whole.  Our  opinion  is,  that  this  objection  is  not 
maintainable  in  point  of  law.  There  is  neither  reason  nor 
policy  to  support  it."  (i) 

1  Tillinghast  v.  Fry,  1  Rhode  Island,        ^  1    Sumn.   118  ;    ace.   Robinson   v. 
406.  Pife,  3  Ohio,  N.  S.  551. 


(i)  In  Calkins  v.  Munsel,  et  iix.,  2  Root,  333,  a  petition  in  chancery  set 
forth,  that  Stephen  Calkins  mortgaged  two  hundred  acres  to  the  defendants, 
to  secure  a  debt ;  that  the  mortgagor  had  conveyed  a  portion  of  the  land  to 
the  petitioner,  and  the  residue  to  others ;  and  prayed  to  redeem,  on  pay- 
ment of  the  debt  to  the  wife,  who  had  survived  her  husband.  Decreed,  that 
upon  such  payment  she  should  release  to  the  petitionei',  which  would  put 
him  in  the  place  of  the  mortgagees,  with  respect  to  the  mortgagor  and  his 
assigns,  as  to  all  the  lands,  except  what  the  petitioner  had  himself  pur- 
chased. * 

A.  mortgaged  Whiteacre,  by  an  absolute  deed,  with  a  defeasance,  to  se- 
cure the  payment  of  notes  due  on  a  certain  day,  and  Blackacre,  conditioned 
for  payment  of  the  same  notes,  and,  in  case  of  failure,  for  the  surrender  of 
Whiteacre,  without  suit  or  trouble.  The  notes  not  being  paid,  A.  gave 
notice  that  he  should  surrender  Whiteacre,  and  did  subsequently  abandon 
it.  Ten  months  after  the  notes  fell  due,  the  mortgagee  took  possession.  On 
a  bill  to  foreclose  both  tracts  against  A.  and  the  grantee  of  Blackacre  ;  held, 
the  surrender  should  have  been  made  in  a  reasonable  time,  or  when  re- 
quested by  the  mortgagee.  No  request  appearing,  and  no  damage  in  con- 
sequence of  neglect  to  surrender  immediately  on  failure  of  payment,  the 
defendants  Avere  permitted  to  I'edeem  Blackaoe,  on  paying  costs  and  inter- 
est on  the  notes,  to  be  compounded  from  the  expiration  of  the  ten  months, 
and  surrendering  the  defeasance.  In  case  of  failure,  it  was  decreed  that 
the  equity  of  redemption  to  both  tracts  should  be  foreclosed.  Hunt  v.  Tyler, 
2  Aik.  233. 

Land  .suljject  to  morlirajire  was  moi't'raged  anew  to  three  mortgagees,  nei- 
ther  having  priority  of  the  others,  and  it  was  agreed  between  them  and  the 


CH.  XV.J  EQUITY    OP   REDEMPTION. 


405 


29.  In  England,  until  a  recent  period,  an  equity  of  re- 
demption  was  not  legal  assets  in  the  hands  of  the  h.-ir,  l)nt 
he  might  plead  rie7is  per  descent.  Since  the  statute  of  frauds, 
like  a  trust,  it  is  held  to  be  assets  in  equity  ;  but  only  to  pay 
debts  of  that  description,  to  which  the  land  would  have  been 
liable,  if  it  had  been  a  legal  estate.     Where  the  mortgage  is 


mortgagor,  tliat,  if  it  should  become  necessary  to  redeem  the  first  mortgage, 
each  of  the  three  should  pay  one  third  of  the  amount,  and  that  they  sliouhl 
be  indemnified  from  the  property.  One  of  them  paid  one  tliird  of  (he  first 
mortgage,  and  then  advanced  the  balance  and  took  an  assignment  of  the 
mortgage.  Upon  a  bill  in  equity  brought  by  him  against  the  other  two,  to 
compel  them  to  redeem,  held,  they  should  be  required  to  redeem  or  forfeit 
all  title  to  the  land,  and  that  in  this  suit  the  Court  would  not  inquire  as  to 
the  particular  mode  in  which,  under  the  contract,  they  were  to  be  indem- 
nified, but  this  should  be  subsequently  adjusted  between  themselves,  llul)- 
bard  v.  Ascutney,  &c.  20  Verm.  402. 

In  Jenness  v.  Robinson,  10  N.  H.  215,  some  of  the  heirs  of  an  intestate, 
holding  a  mortgage  from  him,  in  order  to  prevent  a  sale  of  the  land,  gave  a 
bond  for  the  payment  of  the  debts,  and  thus  discharged  the  mortgage.  The 
other  heirs  bring  a  petition  for  partition  against  them,  claiming  that  their 
shares  of  the  land  should  be  set  off  to  them,  and  the  respondents  left  to  their 
action  to  enforce  a  contribution  for  the  sum  paid  to  extinguish  the  mortgage. 
But  it  was  held,  that  the  respondents  were  substituted  in  place  of  the  mort- 
gagees, and  entitled  to  hold  as  if  they  were  mortgagees  in  possession,  until 
the  amount  charged  on  the  share  of  the  petitioners  should  be  paid  or  ten- 
dered; and  the  petition  was  dismissed.  Parker,  C  J.  says,  (Ibid.  218)  :  — 
"  The  principals  in  that  bond  have,  so  far  as  this  case  is  concerned,  complied 
■with  the  condition  of  their  obligation.  They  have  paid  the  debts  of  the  in- 
testate. Among  those  debts  was  one  secured  by  a  mortgage.  It  is  imma- 
terial now  to  whom  that  debt  was  due.  It  has  been  discharged,  and  the 
estate  redeemed  from  the  incumbrance.  But  this  was  an  incumbrance  which 
aflfected  the  interest  of  all  concerned  in  the  estate.  If  it  had  not  been  re- 
moved, a  foreclosure  must  have  taken  the  whole  land.  When  the  respond- 
ents discharged  the  debt,  —  as  they  acted  without  the  request  of  the  peti- 
tioners, no  right  of  action  accrued  against  the  petitioners  for  contribution. 
The  respondents  had  the  right  so  to  act,  for  the  protection  of  their  own 
interests;  but  the  petitioners  are  not  entitled  to  avail  themselves  of  the 
redemption,  without  paying  a  share  of  the  amount.  They  arc  not  required 
to  become  parties  to  the  redemption,  but,  if  they  ask  the  benefit  of  it,  they 
must  take  it  with  the  burden." 


406  THE    LAW    OF   MORTGAGES.  [CH.  XV. 

made  for  years,  the  equity,  being  incident  to  the  reversion  in 
fee,  is,  like  the  latter,  legal  assets.^  But  now,  by  St.  3  &  4 
Will.  4,  c.  104,  an  equity  of  redemption  is  made  assets  in 
the  hands  of  the  heir  for  payment  of  debts. 

30.  By  the  English  law,  an  equity  of  redemption  has  been 
held  not  liable  to  be  taken  on  execution.  (J) 

31.  Upon  this  subject  it  is  said  :^  "It  seems  impossible  to 
contend,  that  under  the  statute  of  frauds,  the  sheriff  can  de- 
liver an  equit}^  of  redemption  upon  an  execution  in  a  suit 
against  the  mortgagor."  So  in  the  case  of  Plunket  v.  Pen- 
son,^  Lord  Hardwicke  said,  he  should  be  glad  to  be  informed, 
whether  there  was  any  instance,  where  an  equity  of  redemp- 
tion had  ever  been  held  to  be  liable  to  the  execution  of  a 
bond  creditor  in  the  lifetime  of  the  mortgagor.  To  which 
the  counsel  in  the  cause  answered,  that  they  did  not  recol- 
lect any  such  instance.  So,  in  Forth  v.  Duke,  Sec.,*  the  Vice- 
Chancellor  said:  —  "  A  judgment  creditor  has  at  law,  by  the 
statute  of  frauds,  execution  against  the  equitable  freehold 
estate  of  the  debtor  in  the  hands  of  his  trustee,  provided  the 
debtor  has  the  whole  beneficial  interest ;  but  if  he  has  left 
a  partial  interest  only,  (as  an  equity  of  redemption,)  the 
judgment  creditor  has  no  execution  at  law,  though  he  may 
come  into  a  Court  of  Equity,  and  claim  there  the  same  sat- 
isfaction out  of  the  equitable  interest,  as  he  would  be  enti- 
tled to  at  law  if  it  were  legal." 

32.  But  it  may  be  considered  as  an  established  principle 
of  American  law,  that  equities  of  redemption  are  liable  to 

1  2  Cruise,  123,  124 ;  1  Hill,  on   R.  ^1  Sand.  Us.  219. 

P.  396.   See  Fitzsimmons,  &c.  40  Penn.  3  2  Atk.  290. 

422.  *  4  Madd.  504. 


(y)  It  has  been  doubted,  -whether  this  rule  is  changed  by  the  statute  1  & 
2  Vict.  c.  110.  But  whether  it  is  thus  changed  or  not,  it  is  said  a  judgment 
constitutes  a  lien  upon  an  equity  of  redemption,  either  of  freehold  or  lease- 
hold property.  Coote,  79,  80.  A  judgment  lien  upon  the  equity,  if  the 
mortgage  is  discharged,  becomes  a  lien  upon  the  fee.  McCormick  0.  Digby, 
8  Blaekf.  99. 


CH.  XV.]  EQUITY    OF  REDEMPTION. 


407 


be  taken  upon  legal  process.  At  common  law,  as  has  been 
stated,  only  a  legal  title  could  be  thus  seized.^  And  in  some 
of  the  States,  independently  of  statutory  provisions,  this  rule 
has  been  regarded  as  still  in  force.^  (k)  But  in  most,  and 
probably  all  of  them,  in  pursuance  of  the  settled  policy  of 
subjecting  all  forms  and  kinds  of  property  to  the  payment 
of  debts,  equities  of  redemption  have  been  in  this  respect 
placed,  by  express  legislation,  on  the  same  footing  with  legal 
estates. 

33.  It  is  to  be  observed,  however,  that  an  equity  of  redemp- 
tion is  liable  to  be  taken  upon  legal  process,  only  in  favor  of 
third  persons,  or  other  creditors  of  the  mortgagor  than  the 
mortgagee  himself.  On  account  of  the  close  connection,  and 
in  some  respects  the  absolute  identity,  between  the  mortgage 
and  the  debt  which  it  secures,  and  for  other  reasons,  which 
will  presently  appear,  it  has  been  often  decided,  that  the 
mortgagee  cannot  levy  an  execution,  recovered  in  a  suit  upon 
the  mortgage  debt,  on  the  equity  of  redemption.  Or  else, 
where  the  mortgagee  sells  the  property  upon  an  execution, 
and  himself  becomes  the  purchaser  ;  he  reinstates  himself  in 
his  old  position,  and  holds  subject  to  redemption.^ 

1  Van  Ness  v.  Hyatt,  13  Pet.  298;         '^  Goring  v.  Slireve,  7  Dana,  06,  67. 
Hill  V.  Smith,  2  McL.  446.  See  State,  &c.  v.  Lawson,  1  Eng.  269. 

s  Thornton  v.  Pigg,  24  Mis.  249. 


(Ic)  In  South  Carolina,  a  mere  equity  of  redemption  Is  held  not  liable  to 
sale  on  execution.  But,  a  statute  having  declared  such  equity  to  be  a  legal 
right,  it  is  thereby  made  liable  to  be  thus  taken.  State  v.  Laval,  4  McC. 
340.  In  Illinois,  it  seems,  independently  of  statute,  an  equity  of  redemption 
is  not  subject  to  execution.  Hill  v.  Smith,  2  McL.  448  ;  nor  in  Mississippi. 
In  New  York,  an  equity  of  redemption  has  been  held  liable  to  execution, 
by  the  common  law  of  that  State.  Jackson  v.  Willard,  4  Johns.  41  ;  Hitch- 
cock V.  Harrington,  6,  290;  Collins  r.  Torry,  7,  278.  See  Morde.;ai  v. 
Parker,  3  Dev.  425. 

In  Van  Ness  v.  Hyatt,  13  Pet.  294,  it  was  held,  that  an  equity  of  redemp- 
tion of  land,  in  that  part  of  the  District  of  Columbia,  ceded  by  the  State  of 
Maryland  to  the  United  States,  cannot  be  taken  in  execution ;  the  common- 
law  rule,  by  which  such  an  estate  is  not  liable  to  be  thus  taken,  having  pre- 
vailed in  Maryland  at  the  time  of  cession,  and  never  haying  been  changed 
by  any  express  statute,  or  overruled  by  any  judicial  decision. 


408  THE    LAW    OF   MORTGAGES.  [CH.  XV. 

34.  The  following  view  of  the  English  and  American 
decisions  not  only  illustrates  this  particular  point,  but  throws 
light,  incidentally,  upon  the  general  relation  between  mort- 
gagor and  mortgagee,  and  parties  claiming  under  them, 
respectively. 

35.  The  case  of  Lyster  v.  Dolland,i  though  somewhat 
obscure,  has  a  bearing  upon  the  point  under  consideration. 
In  that  case,  the  mortgagee  filed  a  bill  of  foreclosure,  and, 
pending  such  bill,  and  wiiile  he  was  in  possession  by  eject- 
ment, brought  a  suit  upon  the  bond  accompanying  the  mort- 
gage, took  the  premises  in  execution,  and  they  were  sold  by 
the  sheriff  to  a  trustee  for  him.  No  unfairness  was  suggested. 
The  Lord  Chancellor  said,  if  the  obligee,  having  a  pledge  in 
his  hands,  has  brought  an  action  against  the  obligor,  and  has 
taken  the  pledge  in  redemption,  he  takes  only  the  equity  of 
redemption  under  the  statute  of  frauds,  which,  but  for  that 
statute,  could  not  be  taken  in  execution.  If  he  had  got  a 
foreclosure,  and  had  afterwards  brought  an  action,  and  sold 
it  for  £5,  he  would  have  opened  his  foreclosure  again.  I  do 
not  think  he  could  have  sold  it  to  a  stranger.  If  that  offer 
was  made,  I  would  give  it  all  weight.  What  is  to  become 
of  the  principal  case,  and  the  case  put  in  that  way,  are  two 
different  things.  But  it  is  new  to  me,  that  this  case  obtains 
in  mortgages.  Under  the  statute,  the  sheriff  may  extend  an 
equity  ;  but  then  the  vendee  of  the  equity  is  in  the  same  case 
as  the  defendant  in  the  action,  and  must  proceed  as  cases  in 
action  must,  and  must  make  it  good  by  the  same  means  as 
the  defendant  must,  for  it  is  an  extent  of  a  thing  in  action. 
The  words  of  the  statute  are,  the  sheriff  shall  deliver  in  ex- 
ecution to  the  party  any  lands,  tenements,  &c.,  held  in  trust 
for  the  defendant,  as  if  he  had  been  actually  seised  or  pos- 
sessed. The  statute  does  not  speak  of  equitable  interests, 
and  does  not  at  all  touch  this  case. 

36.  In  the  case  of  Atkins  v.  Sawyer,-  Wilde,  J.,  remarks 
as  follows  :  —  "In  the  first  place  it  is  difficult  to  determine,  in 
case  the  sale  be  held  valid,  by  what  title  the  mortgagee  holds 
1  1  Ves.  Juii.  431.  2  1  Pick.  356,  357. 


CH.  XV.]  EQUITY   OP   KEDEMPTION.  409 

the  estate  after  purchasing  the  equity.     The  debt  beiii«r  paid 
by  the  sale  of  the  equity,  he  has  no  right  to  hold  a"-ain.st  the 
mortgagor  in  the  character  of  mortgagee ;  for  although  the 
legal  estate  remains  in  hira  notwithstanding  the  payment  of 
the  debt,  yet  after  such  payment  he  is  bound  to  restore  the 
possession  to  the  mortgagor,  or  the  latter  will  be  entitled  to 
his  bill  in  equity.     It  would  seem,  then,  that  the  mortga<Tee 
in  such  case  must  hold,  if  he  can  hold  at  all,  by  virtue  of  the 
sale  of  the  equity ;  but  this  equity  is  a  right  to  redeem,  and 
what  estate  remains  for  him  to  redeem  after  the  payment  of 
the  mortgage.     There  can  be  no  further  payment,  and  noth- 
ing is  to  be  done  by  him  to  complete  his  title  ;  if,  therefore,  he 
holds  anything  by  virtue  of  the  sale,  he  would  seem  to  hold 
the  estate  itself,  instead  of  a  right  in  equity  to  redeem,  which 
cannot  be  pretended.     This  may  appear  to  be  a  technical 
difficulty,  but  it  shows  that  the  novel  mode  of  procedure  for 
which  the  defendant's  counsel  contends,  necessarily  leads  to 
great  inconsistency.     There  is  another  difficulty,  however,  of 
much  greater  importance,  and  which  appears  to  me  insuper- 
able.    If  the  sale   of  the  equity  be  operative,  its  operation 
will  be  repugnant  to  the  statute  regulating  the  foreclosure  of 
mortgages;  it  enables  the  mortgagee  at  his  will  and  pleasure 
to  reduce  the  mortgagor's  right  of  redemption  from  three 
years   to    one ;    thus  depriving  him    of  an  important   right 
secured  to  him  by  the  express  words  of  the  statute,  which  in 
all  cases  allows  the  mortgagor  to  redeem  the  mortgage  at 
any  time  within  three  years  after  entry  for  condition  broken. 
This  is  the  necessary  effect  of  the  principle  contended  for 
by  the  defendant,  and-  it  is  the  only  possible  advantage  the 
mortgagee  can  derive  from  a  sale  of  the  equity.     He  has 
before  the   sale  the  whole  legal  estate,  and  he   holds  it  as 
security  for  the  same  sum  before  and  after  the  sale,  except 
the  costs  unnecessarily  incurred  in  the  suit  on  the  personal 
security.     This  being  the  effect  of  the  sale  of  the  equity  by 
the  mortgagee,  it  cannot  be  supported,  unless  it  can  be  main- 
.  tained  that  the  statute  of  1815  repealed  the  law  respecting 
the  right  of  redeeming  the  mortgaged  estate,  which  there  is 

VOL.   I.  35 


410  THE    LAW    OF   MORTGAGES.  [CH.   XV. 

no  pretence  for  saying.  The  principal  objection  to  the  doc- 
trine now  laid  down  is,  that  if  a  stranger  becomes  the  pur- 
chaser of  the  equity,  without  notice  that  it  is  sold  to  satisfy 
a  judgment  founded  on  the  debt  secured  by  the  mortgage,  he 
may  suffer  loss.  But  the  same  objection  may  be  made  in  all 
cases  of  sale  where  there  is  a  defective  title.  The  answer  in 
all  such  cases  is,  caveat  emptor.  He  may  examine  the  title, 
or  demand  a  warranty.  If  he  neglects  to  do  it,  he  cannot 
impute  his  loss  to  any  defect  in  the  sale." 

37.  In  Camp  v.  Coxe,^  the  plaintiff  brought  scire  facias 
upon  a  judgment ;  and  the  defence  was,  that,  holding  a  bond 
and  mortgage  of  the  defendant,  he  levied  an  execution,  re- 
covered in  a  suit  on  the  bond,  upon  the  equity  of  redemption, 
and  himself  became  the  purchaser,  for  less  than  the  sum  due, 
the  sheriff  giving  notice  at  the  sale  that  he  sold  subject  to  the 
mortgage.  Held,  the  sale  was  void,  although  the  statute, 
relating  to  sales  of  equities  of  redemption,  contained  no 
express  exception  of  such  a  case ;  that  this  limitation  arose 
from  the  act  itself  and  the  nature  of  the  subject;  that  its 
object  was  not  to  foreclose  mortgages  and  make  them  more 
effectual  as  securities  to  the  mortgagee,  but  to  subject  the 
equitable  interest  of  the  mortgagor  to  his  creditors  having  no 
security  ;  that  such  a  sale  is  in  every  case  against  the  con- 
tract of  the  parties,  as  understood  in  a  court  of  equity,  by 
which  it  is  stipulated  that  the  mortgagor  may  redeem.  The 
Court  below  having  rendered  judgment  for  the  plaintiff  for 
the  balance  due  on  the  bond,  the  defendant  appealed,  and 
the  judgment  was  affirmed.  But  the  Court  above  remark :  ^ 
—  "  The  defendant  has  paid  nothing,  much  less  the  whole 
debt.  The  payment,  which  at  law  has  been  apparently  made, 
will  be  treated  properly,  when  he  shall  apply  for  redemption 
to  that  tribunal,  which  can  strip  the  case  of  its  formal  legal 
vestments,  and  administer  exact  justice,  according  to  real 
rights  which  can  there  be  seen." 

38.  In  Tice  v.  Annin,^  Kent,  Chancellor,  says  :  —  "  The  true 

1  1  Dev.  &  Bat.  52.     See  Deaver  v.  ^  1  Dev.  &  Bat.  60. 

Parker,  2  Ired.  Ch.  40.  »  2  Johns.  Clia.  130. 


CH.  XV.]  EQUITY    OP   REDEMPTION.  41X 

and  only  remedy  for  all  this  mischief,"  (the  sacrifice  of  the 
property  of  mortgagors,)  "  is  to  prevent  such  sales  ;  and  1 
think  I  shall  be  inclined,  if  the  case  should  arise  hereafter,  to 
prohibit  the  mortgagee  from  proceeding  to  sell  the  equity  of 
redemption.  He  ought  in  every  case  to  be  put  to  his  elec- 
tion, to  proceed  directly  on  his  mortgage,  or  else  to  seek 
other  property,  to  obtain  satisfaction  of  his  debt.  I  see  no 
other  way  to  prevent  a  sacrifice  of  the  interest  of  the  mort- 
gagor, and  it  is  manifestly  equitable,  that  the  mortgagee  be 
compelled  to  deal  with  his  security,  so  as  not  to  work  injus- 
tice." [1) 

39.  In  Goring  v.  Shreve,^  Judge  Ewing  remarked :  — "  The 

1  7  Dana,  67. 


(I)  The  Revised  Statutes  of  New  York,  (vol.  2,  p.  3G8,  §  31,)  forbid  an 
execution  sale  of  the  equity  of  redemption,  upon  a  suit  by  the  mortgagee. 
Palmer  v-  Foote,  7  Paige,  437.  The  mortgagee  may  maintain  a  creditor's 
bill  against  other  property,  after  an  execution  at  law  for  the  debt  has  been 
returned  unsatisfied,  without  first  foreclosing  the  mortgage,  unless  such 
property  has  been  transferred  to  a  third  person,  as  a  primary  fund.  Ibid. 
In  this  State,  it  was  formerly  held,  that,  if  a  mortgagee  sells  the  equity  of 
redemption  by  execution,  to  satisfy  the  mortgage  debt,  and  then  proceeds  at 
law  against  the  person  of  the  mortgagor  for  the  balance,  or  if  the  whole  debt 
is  satisfied  by  such  sale,  he  must  assign  the  bond  and  mortgage  to  the  mort- 
gagor, that  he  may  be  able  to  compel  the  purchaser  of  the  equity  of  redemp- 
tion to  refund  him  the  debt  from  the  lands  mortgaged.  But  if  the  mortgagee, 
by  assigning  the  whole  debt  and  mortgage  to  the  purchaser  of  the  etiuity, 
has  disabled  himself  from  assigning  them  to  the  mortgagor,  the  debt  will  be 
extinguished  in  the  hands  of  the  purchaser.  But  the  mortgagor  will  not  be 
entitled  to  receive  the  purchase-money,  for  the  purchaser  will  be  considered 
to  have  bought  the  land  for  the  price  paid,  subject  to  all  the  residue  of 
the  debt  secured  by  the  mortgage,  beyond  what  was  extinguished  by  that 
purchase-money.  Tice  v.  Annin,  2  Johns.  Ch.  125.  If  a  mortgagee,  in- 
stead of  a  bill  for  foreclosure,  proceed  against  other  property  of  the  debtor, 
his  proceeding  will  be  stayed,  or  he  will  be  required  to  assign  over  the 
securities  to  the  mortgagor.  The  Court  will  restrain  a  mortgagee  from  pro- 
ceeding at  law  to  sell  the  equity,  or  require  him  to  elect,  either  to  proceed 
directly  on  his  mortgage,  or  to  seek  other  property,  (where  the  rights  of 
other  creditors  do  not  interfere,)  or  the  person  of  the  debtor,  for  the  satis- 
faction of  the  debt.     Ibid. 


412  THE    LAW    OF    MORTGAGES.  [CH.  XV. 

sacrifices,  mischiefs,  and  embarrassments,  produced  by  such 
sales,  bring  us  to  the  conclusion,  that  they  were  unauthorized 
by  the  wisdom  of  the  common  law."  And,  in  the  same  case, 
in  construction  of  a  statute  of  Kentucky,  which  provided,  in 
general  terms,  for  the  seizure  and  sale  on  execution  of  prop- 
erty mortgaged,  as  if  no  incumbrance  existed:  "  and  the  pur- 
chaser shall  take  it  subject  to  such  incumbrance,"  which  he 
may  "  pay  off;"  it  was  held  by  the  Court,  that  this  enact- 
ment did  not  apply  to  the  claim  of  the  mortgagee  himself, 
which  is  perfectly  secured  without  this  additional  remedy. 
The  Court  remark  :  ^  —  The  act  "  provides  that  the  purchaser 
shall  take  the  property  purchased,  subject  to  the  incumbrance, 
and  may  pay  off  and  discharge  the  same ;  which  certainly 
implies  that  the  incumbrance  is  not  extinguished  by  the  pur- 
chase, but  remains  in  full  force,  and  must  be  paid  off  by  the 
purchaser,  to  entitle  him  to  the  estate.  But  if  he  purchase  in 
satisfaction  of  the  mortgage  debt,  each  bid  he  makes  will  re- 
duce the  amount  of  the  mortgage  debt,  and  if  he  bid  the  whole 
debt,  the  whole  amount  of  the  incumbrance  will  be  extin- 
guished, and  his  responsibility  not  increased,  or  his  purchase 
rendered  more  valuable,  than  if  he  had  bid  only  a  single  dol- 
lar or  cent,  unless  he  be  made  subject  to  pay  the  amount  of 
the  incumbrance,  notwithstanding  its  extinguishment  by  the 
purchase.  And  if  he  be  still  liable  to  pay  it,  to  whom  shall 
he  pay  it  ?  Not  to  the  mortgagee,  for  his  debt  is  paid ;  and 
not  to  the  mortgagor,  for  his  equity  of  redemption  is  pur- 
chased. So  that  he  is  permitted  to  buy  the  estate,  subject 
to  the  incumbrance,  when,  by  the  operation  of  the  sale,  the 
incumbrance  is  extinguished,  and  he  has  nothing  to  pay  for 
it,  and  consequently  gets  the  whole  estate,  for  the  amount 
bid  for  the  equity  of  redemption  alone.  Such  a  trap  for  the 
sacrifice  of  estate  under  execution,  never  in  our  judgment 
entered  into  the  mind  of  the  legislature;  nor  will  we  give  to 
their  enactment  such  a  mischievous  construction."  The 
same  construction  is  further  fortified  by  a  consideration  of 
the  statutory  provisions ;    that  the  mortgagor,  in   order  to 

1  7  Dana,  OS). 


CH.  XV.]  EQUITY   OF   REDEMPTION.  418 

redeem,  must  pay,  not  only  the  purchase-money,  hut  llie 
amount  paid  by  the  purchaser  in  extinguishv)i<r  Iho  incnm. 
brance;  that  security  shall  be  given  for  the  forthcomiii'r  of 
the  property,  to  abide  any  order  or  decree  in  equity  ;  and 
that  the  Court  shall  have  the  control  of  the  property,  whether 
there  be  a  forfeiture  of  the  mortgage  or  not;  all  contem- 
plating the  continuance,  and  not  the  extinguishment  of  the 
mortgage. 

40.  In  Alabama,  the  mortgagor  may  file  a  bill  to  redeem, 
after  such  sale,  though  possession  has  been  recovered  at  law.^ 
And  the  mortgagee  will  be  held  to  account  for  the  damages 
recovered  by  him,  and  for  the  value  of  the  crop  growing  at 
the  time  of  ouster,  deducting  the  probable  cost  of  cultiva- 
tion.^ 

41.  In  Mississippi,  if  the  mortgagee,  or  those  claiming 
under  him,  cause  an  execution,  issued  upon  a  judgment 
founded  on  the  mortgage  debt,  to  be  levied  upon  the  land ; 
a  purchaser  at  sheriff's  sale  cannot,  upon  that  groun'l,  in  a 
case  unmixed  with  fraud,  oppose  an  application  for  foreclo- 
sure ;  though  he  may  be  substituted  to  the  rights  of  the  mort- 
gagee to  the  extent  of  the  amount  of  his  bid.^ 

42.-  A  similar  rule  has  been  applied,  in  Connecticut,  to  an 
attempted  levy  upon  the  mortgagor's  interest  by  a  creditor 
of  the  mortgagee,  [m)  Thus,  in  Rowe  v.  Couch,^  a  creditor 
of  the  mortgagee  levied  an  execution  upon  the  mortgaged 
premises,  by  appraisement,  in  satisfaction  of  the  debt.  The 
plaintiff,  being  the  mortgagor,  brings  an  action  against  a 
third  person,  who  had  undertaken  to  restore  certain  collateral 
security  upon  payment  of  the  mortgage  debt,  alleging  that 

1  Powell  V.  Williams,  14  Ala.  476.  ^  Baldwin  v.  Jenkins,  23  Miss.  20G. 

2  Ibid.  *  1  Root,  452. 


(m)  In  Michigan,  it  has  been  held,  that  the  "  act  to  provide  for  t!u>  trans- 
fer of  real  estate  in  execution,"  (S.  L.  1842,  p.  1.35,)  does  not  authorize  an 
appraisal  and  set-ofF  of  mortgaged  premises  in  satisfaction  of  the  mortgage, 
without  previous  proceedings  to  foreclose,  either  in  equity  or  by  advertise- 
ment. Buck  V.  Sherman,  2  Doug.  176. 
35* 


414  THE   LAW    OF    MORTGAGES.  [CH.  XV. 

such'debt  was  paid  by  this  levy.  The  Court  say  :  ^  —  "  The 
plaintiff  hath  not  paid  his  debt.  Bacon's  taking  the  farm 
by  execution  may  entitle  him  to  receive  the  money  from  the 
plaintiff,  but  hath  not  altered  the  nature  of  the  mortgaged 
premises,  nor  in  any  manner  paid  or  satisfied  the  plaintiff's 
debt." 

43.  In  Pierce  v.  Potter,^  it  was  held,  that  such  a  sale  ex- 
tinguishes the  lien  of  the  mortgage,  and  vests  a  good  title  in 
the  purchaser.  But  if  the  land  be  sold  to  the  mortgagee  for 
less  than  the  mortgage  debt,  it  is  not  such  an  extinguishment 
of  the  debt,  as  will  enable  the  mortgagor  to  compel  an  entry 
of  satisfaction  upon  the  mortgage,  or  bring  an  action  for  a 
refusal  to  make  it.  The  statute,  making  provision  for  such 
an  action,  gave  to  the  party  aggrieved  a  certain  penalty; 
but  the  mortgagor,  having  lost  all  interest  in  the  property 
by  the  execution  sale,  did  not  fall  under  this  description. 
The  Court  remark,  in  reference  to  the  effect  of  the  sale  :^  — 
"  Though  the  words  of  the  act  are,  that  the  lien  of  such 
mortgage  shall  not  be  destroyed  or  in  any  way  affected  by 
any  sale  made  by  virtue  or  authority  of  any  writ  of  vendi- 
tioni exponas,  yet  when  the  whole  section  is  considered  in 
reference  to  this  case,  it  is  perfectly  obvious  that  it  cannot  be 
held  to  embrace  it.  Here  the  writ  of  venditioni  exponas  in- 
cludes the  same  debt  mentioned  in  the  mortgage,  so  that,  of 
necessity,  the  sale  by  virtue  of  it  could  not  but  affect  the  lien 
of  the  mortgage,  by  reducing,  at  least,  if  not  wholly  dis- 
charging the  debt,  accordingly  as  the  amount  bidden  at  the 
sale  might  happen  to  be  less  or  equal  to  the  amount  of  the 
debt.  It  cannot  be  supposed  that  the  legislature  intended  to. 
exceed  their  power  by  extending  the  act  to  the  case  of  a  writ 
of  venditioni  exponas,  grounded  upon  a  judgment  in  favor 
of  the  mortgagee  against  the  mortgagor  for  the  same  debt 
secured  by  the  mortgage,  because  either  a  reduction  or  an 
entire  payment  of  the  debt  by  a  sale  under  the  writ  would 
necessarily  destroy  or  at  least  affect  by  lessening  the  amount 

^  1  Root,  453.  2  7  Watts,  475,  »  Ibid.  477. 


CH.  XV.]  EQUITY   OP   REDEMPTION.  415 

of  the  lien  of  the  mortgage.  And  it  was  not  in  the  power 
of  the  legislature  to  continue  the  lien  of  the  mortgage  after 
the  payment  of  the  debt,  though  it  was  produced  by  a  sale 
under  the  writ."  [n) 

44.  One  having  a  judgment,  recovered  in  1832,  which  was 
a  lien  upon  premises  covered  by  a  prior  mortgage  dated  in 
1829,  caused  them  to  be  levied  on  and  sold,  and  himself  be- 
came the  purchaser.  The  sale  becoming  absolute,  he  took  a 
deed  from  the  sheriff,  and  the  mortgage  was  foreclosed  under 
the  statute.  Held,  the  judgment  creditor  acquired  no  Ico-al 
title,  which  could  be  set  up  in  defence  to  an  action  of  eject- 
ment.    Browning,  J.,  says  :  —  He  "  must  claim  in  one  of  two 


(n)  The  following  cases  in  the  same  State  (Pennsylvania,)  illustrate  the 
general  subject  treated  in  the  text.  By  the  statute  of  April  6,  1830,  the 
lien  of  a  mortgage  is  not  devested  by  a  sheriff's  sale  of  the  premises,  where 
it  is  prior  to  all  other  liens ;  and  as  in  such  case  a  subsequent  judgment 
creditor  can  sell  only  the  right  of  redemption,  the  mortgagee  cannot  claim 
payment  of  his  debt  from  the  proceeds  of  sale.     Bratton,  &c.,  8  Barr,  164. 

If  a  mortgagee  purchase  the  premises  at  a  sheriff's  sale,  which  does  not 
devest  the  mortgage,  and  retain  the  j^rlce ;  so  much  of  the  price  as  is  pay- 
able to  prior  liens  will  not  be  applied  to  the  mortgage,  though  six  years 
have  elapsed  since  the  sale.     Mott  v.  Clark,  9  Barr,  3D9. 

Land  charged  with  a  legacy,  and  subject  to  a  subsequent  mortgage,  was 
sold  on  execution.  The  case  was  referred  to  auditors,  to  report  the  facts, 
by  whom  depositions  were  taken,  after  notice  to  the  execution  purchaser, 
and  a  purchaser  from  him.  It  was  proved  that  the  purchaser  agreed  to 
buy  the  sheriff's  sale,  subject  to  the  mortgage,  and  the  Court  decreed  that 
the  proceeds  of  sale  be  applied  to  other  and  subsequent  liens.  Hold,  the 
second  purchaser  was  bound  by  the  decree,  and  took  subject  to  the  mort- 
gage ;  and,  upon  a  scire  facias  against  him  and  the  mortgagor,  that  it  was 
not  competent  for  them  to  offer  evidence  that  notice  was  not  given  to  such 
purchaser,  or  that  the  land  was  not  sold  subject  to  the  mortgage.  Towers 
V.  Tuscarora,  &c.,  8  Barr,  297. 

A  sheriff's  sale,  under  a  judgment  confessed  for  the  interest  on  a  bond 
secured  by  mortgage,  relates  back  to  the  date  of  the  mortgage,  and  there- 
fore discharges  It,°although  the  defendant  alienated  the  land  before  the 
judgment;  though  the  mortgage  does  not  expressly  mention  interest,  but 
is  conditioned  for  the  amount  mentioned  in  the  bond.  Hartz  v.  Woods, 
8  Barr,  471. 


416  THE   LAW    OP   MORTGAGES.  [CH.  XV. 

ways,  and  not  in  both.  He  must  say,  either  that  he  was  the 
owner  of  the  equity  of  redemption  at  the  time  of  the  mort- 
gage sale,  or  that  he  was  a  judgment  creditor  having  a  lien. 
If  he  claims  the  equity  of  redemption,  the  answer  is  that  that 
interest  has  been  foreclosed  ;  if  he  claims  merely  as  a  judg-  • 
ment  creditor  having  a  lien,  he  must  then  go  into  equity  and 
redeem.     He  clearly  has  no  title  at  law."  ^  (o) 

45.  In  the  case  of  Bronson  v.  Robinson,^  it  was  held,  that, 
if  land  be  mortgaged  to  a  surety,  to  secure  him  against  his 
liability  for  the  mortgagor ;  it  cannot  be  taken  in  execution 
by  the  creditor  in  a  suit  upon  that  debt.  The  Court  re- 
mark:  ^ —  "Although  the  creditor  is  not  the  actual  mort- 
gagee, his  debt  is  nevertheless  secured  by  the  mortgage. 
Though  not  nominal  mortgagee,  he  is  entitled  to  the  benefit 
of  the  mortgage,  and  may  enforce  it  in  equity,  and  cannot, 
while  he  retains  this  right,  be  regarded  as  a  general  creditor, 
or  a  stranger  to  the  mortgage ;  for  he  has  a  lien  in  equity  for 
his  security.  The  mortgage  secures  the  execution  debt, 
although  the  execution  creditor  is  not  the  mortgagee  ;  and 
the  execution  debt  Is  in  truth  the  mortgage  debt."  They  pro- 
ceed to  remark,  that  the  reasons  given  in  Goring  v.  Shreve, 
(p.  411,)  showing  that  the  statute,  which  authorizes  the  levy 
of  an  execution  upon  equities  of  redemption,  is  inapplicable 
to  an  execution  upon  the  mortgage  debt ;  have  equal  force  in 
the  present  case.  "And  although  this  construction  may  throw 
the  creditor  into  a  court  of  chancery,  because  his  debtor, 
without  consulting  him,  has  made  a  mortgage  which  secures 
his  debt,  this  is  no  more  than  the  debtor  could  have  done 
before  the  enactment  of  the  statute.  And  he  is  left  in  that 
condition,  not  as  a  consequence  of  anything  he  has  done, 

1  Klock  V.  Croukhite,   1   Hill,  108,  «  4  b.  Mon.  143. 

110,  111.  8  Ibid. 


(0)  Where  a  mortgagee  sues  on  bis  bond,  levies  on  the  equity,  and  buys 
it  himself,  the  equity  merges  in  the  legal  estate.  Hill  v.  Smitli,  2  McL.  446. 
So  whether  he  buys  all  or  a  part  of  the  mortgaged  estate.     Ibid. 


CH.   XV.]  EQUITY    OF  REDEMPTION. 


417 


but  because  the  statute,  upon  fair  constmction,  docs  not 
apply  to  his  case  ;  and  because,  if  the  statute  could  be  con- 
strued otherwise,  and  if  it  should  be  supposed,  that  not  iiav- 
ing  voluntarily  taken  a  mortgage,  he  is  entitled  to  a  favorable 
construction  of  it ;  we  say,  that  the  evils  which  must  follow 
from  an  extension  of  it  to  his  case,  greatly  outweigh  the  par- 
tial inconvenience  which  he  may  sustain  from  not  bcinrr 
embraced  in  the  statute."  ^ 

46.  In  Ohio,  it  is  held,  that,  if  the  property  be  taken  and 
sold  on  execution  for  any  part  of  the  mortgage  debt,  the  pur- 
chaser will  hold  it  clear  of  the  incumbrance.^ 

47.  In  Maine,  if  a  judgment  creditor  extend  his  execution 
on  land  mortgaged  for  the  same  debt,  and  the  debtor  neglect 
to  redeem  within  a  year ;  the  creditor  acquires  an  absolute 
estate,  notwithstanding  the  mortgage.^ 

48.  Where  the  promisee  of  a  negotiable  note  secured  by 
mortgage  negotiates  the  former  without  assigning  the  latter ; 
the  indorsee  may  attach  and  sell  on  execution  the  mortga- 
gor's equity  of  redemption,  in  a  suit  upon  the  note.'^  The 
difference,  in  this  respect,  between  such  indorsee  and  the 
mortgagee  himself,  is  said  to  be,^  that  the  latter  already 
holds  the  land  by  contract,  in  such  manner  as  to  give  the 
mortgagor  certain  legal  rights  as  to  the  time  and  manner  of 
defeating  his  estate,  and,  therefore,  he  ought  not  to  be  al- 
lowed to  resort  to  process  against  the  same  land,  which  will 
necessarily  abridge  those  rights.  But  no  such  contract,  ex- 
press or  implied,  is  made  with  the  indorsee,  who  is  presumed 
to  have  taken  the  note  in  the  manner  such  securities  are 
usually  transferred.  The  proceeding  is  admitted  to  be  at- 
tended with  difficulties  ;  but  these  may  be  avoided  by  the 
mortgagor,  by  giving  a  bond  or  a  note  not  negotiable  with 
the  mortgage,  either  of  which,  though  assigned,  must  be 
sued  in  the  name  of  the  original  holder,  and  the  plaintiff 
restricted  to  the  same  means  of  enforcing  payment,  as  the 

1  4  B.  Mon.  144.  *  Crane  v.  March,  4  Tick.  131. 

2  Freebv  v.  Tupper,  15  Ohio,  467.  ^  Tor  Parker,  C.  J.,  Ibid.  135,  136. 
8  Porter  v.  King,  1  Greenl.  297. 


418  THE   LAW    OP   MORTGAGES.,  [CH.  XV. 

mortgagee  himself  would  have  been.  But  negotiable  notes 
have  become  so  common  a  medium  of  business,  that  their 
efficacy  ought  not  to  be  restrained.  It  may  be  objected  to 
the  foregoing  decision,  that  a  mortgagee,  holding  a  negotia- 
ble note,  and  desirous  to  attach  and  levy  upon  the  equity  of 
redemption,  would  be  enabled  to  effect  his  object,  by  making 
a  fictitious  transfer  of  the  note.  But  all  that  the  law  can  do 
in  regard  to  fraudulent  practices  is,  to  avoid  them  when  they 
are  proved  to  exist,  (p) 

49.  But  where  the  note  and  mortgage  have  both  been 
assigned,  the  assignee  cannot,  any  more  than  the  original 
mortgagee,  levy  his  execution  upon  the  equity  of  redemption. 
Thus  James  Goodwin  gave  to  John  Goodwin  a  note  se- 
cured by  mortgage,  and  John,  on  the  same  day,  indorsed 
the  note,  and  assigned  the  mortgage  to  Giles.  James  after- 
wards died,  having  devised  all  his  real  estate  to  John,  and 
appointed  him  executor  of  his  will.  John  afterwards  gave 
to  Giles  his  note  for  the  sum  due  on  the  other  note,  which 
new  note  contained  a  memorandum  that,  when  paid,  it 
should  discharge  the  note  of  James.  Giles  immediately 
brought  an  action  on  the  new  note  against  John,  recovered 
judgment,  and  levied  his  execution  upon  John's  equity  of 
redemption.  The  proceeds  of  this  sale  and  of  the  sale  of 
certain  chattels  were  indorsed  on  the  mortgage  note.  The 
plaintiff,  being  the  execution  purchaser,  brings  an  action 
against  John  to  recover  the  mortgaged  premises.  In  giving 
the  opinion  of  the  Court,  that  the  action  could  not  be  main- 
tained, Wilde,  J.,  refers  to  the  above-cited  case  of  Atkins  v. 
Sawyer,  and  remarks  as  follows  :  —  "  In  this  case,  the  equity 
was  sold  to  satisfy,  in  part,  a  judgment  recovered  by  an 
assignee  of  the  mortgage  ;  but  this  makes  no  difference,  for 


{p)  The  assignee  of  a  mortgage  debt  levied  an  execution,  in  an  action 
upon  such  debt,  on  the  property  mortgaged.  After  an  acquiescence  of  four 
years,  held,  a  purchaser  from  the  execution  purchaser,  without  notice  of  the 
mortgage,  should  not  be  disturbed  in  his  title  by  the  mortgagee  or  his  as- 
signee.    Waller  v.  Tate,  4  B.  Mon.  533. 


CH.  XV.]  EQUITY    OF  REDEMPTION.  419 

the  assignee  has  the  same  rights  which  the  mortgagd;  had, 
and  no  greater,  and  by  the  sale  of  the  equity  he  could  obtain 
no  additional  security.  If  the  mortgage  debt  had  been  as- 
signed without  the  mortgage,  the  sale  would  have  been  valid, 
according  to  the  decision  in  Crane  v.  March,  4  Pick.  KM. 
But  here,  the  mortgage  having  been  assigned  with  the  debt, 
the  case  cannot  be  distinguished  from  that  of  Atkins  v.  Saw- 
yer. Nor  does  it  make  any  difference,  that  John  Goodwin, 
the  son  of  the  mortgagor,  after  his  decease,  gave  his  note  for 
the  amount  due  on  the  mortgage,  and  that  the  equity  was 
sold  to  satisfy  a  judgment  recovered  on  that  note.  This 
note  was  given  merely  as  additional  security,  and  operated 
as  such  as  to  the  sale  of  the  property  which  was  not  included 
in  the  mortgage.  But  the  mortgage  was  not  discharged. 
The  assignee  still  held  the  original  note  against  the  mortga- 
gor, and  the  proceeds  of  the  sale  of  property  on  the  execution 
against  John  Goodwin,  were  indorsed  on  the  note  against 
James  Goodwin,  the  mortgagor.  On  these  grounds,  we  are 
of  opinion  that  the  sale  of  the  equity  is  void  ;  and  the  plain- 
tiff's title  fails."  i  {q) 

50.  Where  the  same  land  is  twice  mortgaged,  the  first 
mortgagee  may  levy  an  execution,  recovered  in  a  suit  on  the 
mortgage  note,  upon  the  right  of  redeeming  the  second  mort- 
gage ;  more  especially  if  the  second  mortgage  includes  other 
land.     The  Court  remark  :  —  "  The  mortgagor,  by  his  own 

1  Washburn  v.  Goodwin,  17  Pick.  137,  139. 


{q)  A  mortgagee  of  personal  property  brought  an  action  for  the  Jcbt,  and 
attached  the  mortgaged  property.  Afterwards,  the  mortgagor  having  peti- 
tioned under  the  insolvent  law,  the  mortgagee  waived  the  attachment,  and 
suffered  the  messenger  to  take  the  property.  Held,  he  had  not  thereby  lost 
his  right  to  petition  the  master  in  chancery  for  a  sale  of  it ;  more  especially 
as  it  did  not  appear  that  the  mortgagee  ordered  an  attachment  of  these  par- 
ticular goods,  and  there  were  others,  not  included  in  the  mortgage.  The 
Court  took  a  distinction  between  this  case,  of  a  mortgage,  where  the  title 
does  not  depend  on  actual  possession,  and  a  mere  lien,  like  the  right  of 
retaining  possession  for  services  done,  where  an  attachment  would  be  a 
waiver  of  the  lien.     Barnard  v.  Eaton,  2  Cush.  294,  304. 


420  THE   LAW   OP   MORTGAGES.  [CH.  XV. 

act,  created  a  new  equity  of  redemption,  partly  in  the  land 
previously  mortgaged  —  and  partly  in  other  land.  No  part 
of  this  new  equity  was  the  subject  of  any  contract  between 
Fairfield  (the  first  mortgagee)  and  the  tenant.  The  contract 
between  Fairfield  and  the  tenant,  which  the  former  is  not 
permitted  to  violate,  extends  only  to  the  right  of  the  latter  to 
redeem  the  first  mortgage."  The  rights  of  redeeming  the 
two  mortgages  are  distinct  rights..  If  a  different  rule  were 
adopted,  "  a  mortgagor,  by  giving  a  second  mortgage  of  the 
same  land  to  a  different  person,  and  including  in  it  other 
land  also,  might  place  a  part  of  his  property,  which  the  first 
mortgagee  might  otherwise  resort  to  —  out  of  the  reach  of 
such  mortgagee.  For,  when  a  mortgage  is  made  of  different 
tracts —  we  know  of  no  law  by  which  the  equity  of  redeem- 
ing one  of  the  tracts  only  can  be  sold."  ^ 

51.  In  England,  an  equity  of  redemption  is  subject  to  cur- 
tesy^ if  the  wife  is  in  possession  of  the  land  during  coverture. 
For,  though  such  possession  is  a  mere  tenancy  at  will,  it  is, 
in  equity,  that  of  the  real  owner,  subject  only  to  a  pecuniary 
charge.  Nor  is  the  husband  to  be  deprived  of  curtesy  on 
the  ground  of  laches,  in  not  paying  off  the  mortgage  and 
thereby  acquiring  an  absolute  title,  by  analogy  to  the  rule 
which  requires  of  him  actual  entry  upon  a  legal  estate  of  the 
wife  ;  for  payment  of  a  mortgage  is  a  far  more  difficult  mat- 
ter than  a  mere  entry  upon  land,  besides  that  the  mortgagee 
is  entitled  to  notice  before  he  is  bound  to  accept  such  pay- 
ment. Upon  these  grounds,  a  decision  of  Sir  Joseph  Jekyll, 
disallowing  curtesy  in  an  equity  of  redemption,  was  reversed 
by  Lord  Hardwicke.^ 

52.  A  different  rule,  however,  has  prevailed  in  relation  to 
dower.  In  general,  dower  is  more  peculiarly  favored  by  the 
law  than  curtesy  or  any  other  estate.  A  dowress  is  said  to 
be  in  the  care  of  the  law  and  a  favorite  of  the  law ;  ^  to  have 
an  equitable  and  a  moral  right,  favored  in  a  high  degree  by 

1  Johnson  v.  Stevens,  7  Cush.  432,  See  Hitner  v.  Ege,  23  Penn.  305;  Sen- 

434,  435.  till  v.  rrobeson,  2  Jones,  Eq.  510. 

■^  1  Hill,  on  R.  P.  395;  Casborne  v.  ^  1  Story's  Eq.  5«3. 
Inglis,   2  Ab.  Eq.  728;    1  Atk.  G03. 


CH.  XV,]  EQUITY    OF    REDEMPTION.  .{^I 

law,  and  next  to  life  and  liberty  held  sacred.^  Moreover, 
dower  is  a  regular  subject  of  equity  jurisdiction ;  (/)  and  it 
has  been  said  to  be  unconscientious  to  turn  the  widow  over 
to  law  for  the  recovery  of  a  provision  necessary  to  her  imme- 
diate subsistence.'-^  Yet,  it  would  seem  upon  purely  techni- 
cal grounds,  the  mere  circumstance  of  an  estate's  being 
incumbered  by  mortgage  has  been  held  in  England  to  pre- 
clude a  widow  from  taking  any  share  therein.  Chancellor 
Kent  says  :  ^  —  "  In  England,  dower  is  considered  as  a  mere 
legal  right,  and  equity  follows  the  law,  and  will  not  create 
the  right  where  it  does  not  subsist  at  law." 

53.  In  Banks  v.  Sutton,*  it  was  held  by  Sir  Joseph  Jekyll, 
M.  R.,  that  the  widow  of  a  mortgagor  in  fee  should  be 
endowed  of  the  equity  of  redemption,  upon  paying  a  liiird 
of  the  mortgage-money,  or  keeping  down  a  third  of  the 
interest.  This  decision  was  based  upon  the  grounds,  that 
dower  is  a  moral,  a  legal,  and  an  equitable  right,  and  entitled 
to  more  favor  than  courtesy,  which  has  always  been  allowed 
in  equities  of  redemption.  Sir  Joseph  Jekyll  closes  an  elab- 
orate and  learned  opinion  by  saying  :  ^ — "I  do  not  know 
nor  can  find  any  instance,  where  a  dower  of  an  equity  of 
redemption  was  controverted,  and  adjudged  against  the  dow- 
ress ;  and  as  there  are  authorities  in  cases  less  favorable, 
therefore  I  declare,  that  the  plaintiff  being  the  widow  of  the 
person  entitled  to  the  equity  of  redemption  of  this  mortgage 
in  question,  (which  was  a  mortgage  in  fee,)  hath  a  right  of 
redemption  ;  and  accordingly  decree  her  the  arrears  of  iier 

1  Kennedy  v.  Nedrow,  1  Dall.  417.  *  2  P.  Wms.  701. 

2  1  Story's  Eq.  579.  ^  Ibid.  719. 
8  Titus  V.  Neilson,  5  John.  Ch.  454. 


(r)  In  Massachusetts,  Parker,  C.  J.,  reuiarked,  (Bolton  c.  Ballard,  18 
Mass.  230,)  "  This  right  raav  be  enforced  in  England  by  the  inlei-vei.tion  of 
the  Court  of  Chancery." 

In  another  case,  (Snow  v.  Stevens,  13  Mass.  280,)  the  same  judge  re- 
marks :  "  The  interest  of  the  widow  in  such  estate  is  protected  by  tliu  Court 
of  Chancery." 

VOL.  I.  36 


422  .  THE   LAW    OP   MORTGAGES.  [CH.  XV. 

dower  ftom  the  death  of  her  husband,  she  allowing  the 
third  of  the  interest  of  the  mortgage  -  money  unsatisfied 
at  that  time,  and  her  dower  to  be  set  out,  if  the  parties 
differ." 

54.  In  Attorney-General  v.  Scott,^  Lord  Talbot  decreed 
against  a  claim  of  dower  in  a  trust  estate ;  treating  a  trust 
as  exactly  the  same  interest  with  a  use  before  the  statute  of 
uses,  in  which  dower  was  never  allowed.  He  cites  as  an 
authority  the  case  of  Bottoraly  v.  Lord  Fairfax,  Pasch.  1712, 
Prec.  in  Chan.  336,  and  remarks,  in  reference  to  another 
decision,  cited  in  the  argument : —  "  For  me,  therefore,  to  do 
a  thing  merely  upon  the  authority  of  an  obscure  case,  (name- 
ly, Fletcher  v.  Robinson,)  which  does  not  seern  to  have  been 
determined  upon  that  point  neither,  and  that  might  perhaps 
shake  the  settlements  of  five  hundred  families,  is  what  I  can- 
not answer  to  my  conscience." 

55.  This  decision  has  been  since  uniformly  adhered  to. 
And  no  peculiar  equities  on  the  part  of  the  wife  will  operate 
to  change  the  rule  in  her  favor ;  as,  for  instance,  the  facts, 
that  the  husband  expressed  his  expectation  and  desire  that 
she  should  have  dower,  and  was  so  instructed  by  the  person 
who  drew  his  will ;  that  the  wife  is  left  for  the  most  part 
otherwise  unprovided  for  ;  and  that  certain  articles  of  luxury, 
such  as  a  coach  and  horses  and  plate,  are  bequeathed  t*o  her, 
for  which  she  can  have  no  use  without  dower  to  support 
her.2  (s) 

56.  In  the  United  States,  this  rule  has  been  extensively  if 
not  universally  changed,  either  by  legislative  enactment  or 
judicial  decision.  In  North  Carolina,  Virginia,  Illinois,  In- 
diana,   Tennessee,    and   Ohio,  (f)   dower  is  allowed   in    all 

1  For.  138.  2  Dixon  v.  Saville,  2  Cruise,  117;  2 

Pow.  693 ;  1  Bro.  325. 


(s)  But,  by  St.  3  &  4  Will.  4,  c.  105,  §  2,  a  widow  may  claiui  dower  in 
equity  from  any  beneficial  estate  or  inheritance  in  possession,  except  joint 
tenancy,  in  which  she  is  not  dowable  at  law.     1  Steph.  349,  3.50. 

(<)  In  Tennessee,  it  has  been  held  that  there  is  no  dower  in  lands  mort- 


CH.  XV.]  EQUITY    OF   REDEMPTION.  423 

equitable  estates.^  Chancellor  Kent  says,^  dower  is  allowed 
in  equities  of  redemption  in  Massachusetts,  New  York,  Con- 
necticut, New  Jersey,  Pennsylvania,  Virginia,  Alabama,  In- 
diana, and  probably  most  or  all  of  the  other  States,  (u)     It 

1  1  Vir.  Rev.  C.  159;  Illin.  Rev.  L.    909;  McM.ilian  /•.  Kimball    ?,  Blackl 
627 ;  1  N.  C.  Rev.  St.  614  ;  Ind.  Rev.    6. 
L.  209 ;  Ten.   St.  1823,  46 ;    4  Griff.        '^  4  Kent,  44. 


gaged  by  the  husband,  because  he  did  not  die  seised  and  possessed  of  them. 
Mclver  v.  Cherry,  8  Humph.  713. 

In  Mississippi,  a  wife  may  expressly  release  her  right  of  dower,  and  the 
signing  and  acknowledgment  of  a  mortgage  by  a  wife,  and  its  delivery  to  the 
mortgagee  as  her  act  and  deed,  will  conclude  her  of  her  dower.  McLean  v. 
Ragsdale,  31  Mis^.  701. 

(m)  In  Michigan,  if  the  heir  or  other  representative  of  the  mortgagor 
redeem  the  land,  the  widow  may  either  pay  her  share,  and  take  one  third 
of  the  land,  or  take  so  much  less  than  a  third  as  will  be  equivalent  to  lier 
share  of  the  debt.  Mich.  Rev.  St.  2G2,  2G3.  By  a  late  statute,  in  case  of  a 
mortgage  before  marriage,  the  widow  has  dower  as  against  every  person 
except  the  mortgagee  and  those  claiming  under  him. 

When  a  husband  purchases  lands  during  coverture,  and  at  the  same  time 
mortgages  such  lands  to  secure  the  purchase-money,  his  widow,  though  not 
joining  in  the  mortgage,  has  no  dower  as  against  the  mortgagee,  or  those 
churning  under  him,  but  she  shall  be  entitled  to  her  dower  as  against  all 
other  persons. 

When,  in  cither  of  the  cases  above  mentioned,  or  in  case  of  a  mortgage 
in  which  she  joins  with  her  husband,  the  mortgagee,  or  those  claiming  under 
him,  after  the  death  of  the  husband,  cause  the  mortgaged  premises  to  be 
sold  by  virtue  of  such  mortgage  ;  if  a  surplus  remains  after  payment  of  the 
debt  and  costs,  the  widow  shall  be  entitled  to  the  interest  or  income  of  one 
third  part  of  such  surplus,  for  her  life,  as  dower. 

If  the  heir,  or  other  person  claiming  under  the  husband,  pay  the  mortgage, 
the  widow  shall  have  set  out  to  her  the  value  of  one  third  of  the  residue 
after  deducting  such  payment.     Mich.  Comp.  L.  1857,  p.  850. 

In  Arkansas,  where  mortgaged  land  is  sold  after  the  death  of  the  husband 
for  the  mortgage  debt,  the  widow  shall  have  the  interest  of  one  third  of  any 
surplus.  Ark.^Rev.  St.  337.  In  Vermont,  the  widow  of  a  mortgagor  has 
dower  upon  payment  of  her  proportion  of  the  debt,  under  direction  of  the 
probate  court.  If  the  heir,  &c.,  pay  the  debt,  she  has  one  third  of  the  land, 
deducting  the  value  of  the  payment.  The  administrator  is  required  to  pay 
the  mortgage,  if  for  the  benefit  of  those  interested  to  redeem,  either  from  the 
personal,  or  by  sale  of  the  real  estate.    If  there  is  sufficient  personal  property, 


424  THE    LAW    OF    MORTGAGES.  [CH.  XV. 

will  be  interesting  and  profitable  to  trace  the  course  of  adju- 
dications upon  this  subject  in  the  several  States,  indicating 
throughout  a  strong  desire  and  purpose  to  be  governed  rather 
by  the  general  spirit  of  the  English  law,  so  peculiarly  favor- 
able to  the  right  of  dower,  than  by  its  harsh  application  of 
mere  technical  rules  to  this  particular  instance  of  the  claim. 

57.  In  New  Jersey,  in  the  case  of  Montgomery  v.  Bruere,^ 
the  Court,  (Southard,  J.,  dissenting,)  went  very  largely  into 
a  .consideration  of  this  subject,  and  came  to  the  conclusion 
that  dower  should  not  be  allowed  in  an  equity  of  redemption. 
They  proceed  upon  the  ground,  that,  as  between  the  mort- 
gagee and  mortgagor,  the  former  is  seised  of  the  freehold,  the 
latter  being  merely  his  tenant  at  will,  or  quasi  tenant  at  will ; 
and  that  in  a  court  of  law  the  widow  of  the  mortgagor 
could  not  claim  dower,  either  on  account  of  an  equitable 
seisin  of  the  husband,  or  a  legal  seisin  of  the  mortgagee,  as 
his  trustee.  They  further  held,  that  the  claim  could  not  be 
allowed  even  in  a  court  of  equity,  the  case  of  Banks  v. 
Sutton,  the  only  one  favoring  such  allowance,  having  been 
decisively  overruled  by  subsequent  cases. 

58.  In  the  same  State  it  is  held,  that  the  widow  of  one 
seised  of  an  equity  of  redemption  is  not  entitled  to  dower 
against  the  mortgagee  or  his  assignee,  though  the  mortgagee 
has  purchased  the  equity  of  redemption  ;  but  he  will  be  con- 
sidered to  hold  under  the  mortgage.^  (y) 

1  1  Soutli.  260.  2  Thompson  v.  Boyd,  I  N.  J.  58. 


the  Court  may  order  dower  in  the  whole  ]and.  Verm.  Rev.  St.  289.  In 
Wisconsin,  (Rev.  Sts.  333,)  there  is  no  dower,  where  the  mortgage  was 
made  to  secure. the  purchase-money  of  the  land.  In  case  of  sale  by  the 
mortgagee  after  the  death  of  the  husband,  the  widow  has  the  income  of  one 
third  of  the  proceeds.  If  the  heir,  or  otlier  person  claiming  under  the  hus- 
band, pay  the  mortgage  ;  one  third  of  the  balance  of  the  value  of  the  land. 
The  law  in  Arkansas  is  substantially  the  same  as  in  Wisconsin.  It  is  fur- 
ther provided,  that  the  widow  of  a  mortgagee  shall  not  have  dower.  Ark. 
L.  445,  446. 

(f)  The  owner  of  an  equity  of  redemption  having  died,  leaving  a  widow, 


CH.  XV.]-  EQUITY    OF   REDEMPTIUN.  425 

59.  In  Stelle  v.  Carrol V  the  English  rule,  against  allow- 
ing dower  in  equities  of  redemption,  was  held  to  bo  in 
force  in  the  State  of  Maryland,  when  the  United  States 
assumed  jurisdiction  over  the  District  of  Columbia,  though 
since  changed  by  statute.  Hence,  where  mortgages  were 
made  during  coverture,  but  the  mortgages  acknowledged  by 
the  wife,  according  to  the  statutory  requirement,  upon  privy 
examination ;  it  was  held,  that  the  legal  estate  passed  to  the 
mortgagee,  the  husband  retaining  only  an  equity  of  redemp- 
tion ;  and,  as  the  wife  had  no  right  of  dower  in  this  equity, 
va  subsequent  deed,  executed  by  the  husband  alone,  passed 
his  whole  title,  and  barred  the  claim  of  dower. 

1  12  Pet.  201. 


the  land  was  sold  at  auction,  for  the  e.xpressed  purpose  of  pavinij  the  mort- 
gage ;  a  clear  title  to  be  given  the  purchaser.  The  assignee  of  the  mort- 
gage became  the  purchaser,  deducted  the  amount  of  the  mortgage  debt  from 
his  bid,  paid  the  balance,  released  the  mortgage  bond,  but  retained  the  mort- 
gage for  the  purpose  of  defending  against  any  claim  for  dower.  Held,  he 
had  a  riglit  so  to  do,  and  the  widow  was  not  entitled  to  dower  against  him. 
Thompson  v.  Boyd,  1  N.  J.  58. 

Devise  of  mortgaged  lands  to  two  sons  of  the  testator.  One  of  them  re- 
leased to  the  other,  who  died,  having  empowered  his  executors  to  sell  other 
parts  of  his  estate.  An  act  was  passed,  authorizing  them  to  sell  the  mort- 
gaged property,  free  from  incumbrance,  and  they  sold  to  an  assignee  of  the 
mortgage,  who  also  held  another  mortgage,  which  he  cancelled  and  surren- 
dered, retaining  the  first  mortgage  as  a  monument  of  title,  and  paying  them 
the  balance  of  the  price.  The  widow  of  the  son  brings  an  action  for  her 
dower.  Held,  her  only  remedy  was  a  bill  in  ei^uity  to  redeem,  the  mort- 
gage being  a  paramount  title,  and  not  affected  by  the  act  in  question.  Ibid., 
2  N.  J.  543.  It  is  now  held  in  New  Jersey,  that  a  widow  is  entitled  to  dower  in 
an  equity  of  redemption,  and  a  court  of  equity  will  protect  her  right  thereto. 
Where  upon  the  death  of  a  mortgagor  the  land  is  sold,  under  a  decree  of 
Court,  the  surplus,  after  satisfying  the  mortgages,  represents  the  ctjuity  of 
redemption,  and  the  widow  of  the  mortgagor  is  entitled  to  her  dower  in  it. 
Where  land  was  sold  under  a  prior  mortgage,  in  which  a  wife  jointd,  and 
her  husband  was  dead  at  the  time  of  sale  and  foreclosure,  the  Court  will  give 
the  widow  her  third  of  the  surplus  as  against  a  mortgagee,  who.e. mortgage 
she  did  not  unite  with  her  husband  in  executing.  Illnchman  v.  Stiles,  1 
Stockt.  361,  454. 

36  * 


426  THE    LAW    OF    MORTGAGES.  [CH.  XV. 

60.  In  Mayburry  v.  Brien,  McLean,^  J.,  says: — "By  the 
common  law,  dower  does  not  attach  to  an  equity  of  redemp- 
tion. The  fee  is  vested  in  the  mortgagee,  and  the  wife  is 
not  dowable  of  an  equitable  seisin.  This  rule  has  been 
changed  in  Maryland  by  the  tenth  section  of  the  act  of  1818, 
oh.  193,  which  gives  dower  in  an  equitable  title  under  cer- 
tain restrictions ;  and  in  many  of  the  States  a  different  rule 
obtains  by  statutory  provision,  or  by  a  judicial  modification 
of  the  common  law.  As  the  right  of  the  complainant  de- 
pends on  conveyances  prior  to  1818,  the  above  statute  can 
have  no  effect  upon  it."  So,  where  there  was  a  conveyance 
to  A.,  in  trust  for  B.  during  the  life  of  B.,  and  after  his  death 
in  trust  for  A.,  his  heirs  and  assigns,  and,  before  the  death  of 
B.,  A.  mortgaged  to  C. ;  held,  the  widow  of  A.,  married  to  him 
after  the  mortgage  and  before  the  death  of  B.,  was  not  enti- 
tled to  dower  in  the  land  at  common  law,  nor  under  the  act 
of  1818,  ch.  193,  to  the  prejudice  of  the  mortgagee  or  of  the 
purchaser  of  the  equity.^ 

61.  But  it  has  been  more  recently  decided  in  Maryland,  that 
the  widow  of  a  mortgagor,  who  joined  in  the  mortgage,  may 
claim  dower,  subject  to  the  mortgage,  and  redeem ;  and  that 
she  may  require  the  personal  representatives  to  apply  the 
personal  assets  in  discharge  of  the  incumbrance.^  If  she  has 
in  the  mortgage  legally  relinquished  her  dower,  a  sale  of  the 
lands  to  satisfy  the  mortgage  debt  will  extinguish  her  claim 
to  dower,  whatever  right  she  may  have  to  a  share  of  the  pro- 
ceeds of  sale.*  But  where,  after  a  legal  assignment  of  dower, 
the  land  was  sold  under  a  decree  to  satisfy  the  mortgage 
debt,  the  widow  shall  still  be  endowed  from  the  husband's 
remaining  estate.^ 

62.  Numerous  decisions  upon  the  subject  have  occurred  in 
New  York.  In  Hitchcock  v.  Harrington,^  the  mortgagor  died 
in  possession,  after  the  debt  became  due  and  before  foreclos- 
ure ;  and  he  was  held  to  have  died  seised,  in  respect  to  the 

1  15  Pet.  38.  ''  Ibid. 

2  Miller  V.  Stump,  3  Gill,  304.  ^  i^id. 

'  Mantz  V.  Buchanan,  1  Md.  Ch.  ^  (j  jyjms.  290.  See  Lewis  r.  Smith, 
202.  11  Barb.  152. 


CH.  XV.]  EQUITY   OP   REDEMPTION.  427 

dower  of  his  wife,  and  she  was  held  entitled  to  dower,  as 
against  a  purchaser  from  the  heir,  who  had  paid  off  and  !*ut^ 
isfied  the  mortgage.  So  in  Collins  v.  Torry,^  it  was  held, 
that  the  widow  of  a  person  purchasing  from  the  mortgagor, 
subsequent  to  the  mortgage,  might  recover  her  dower  against 
a  purchaser  under  the  husband,  who  could  not  set  up  the 
mortgage,  even  as  a  subsisting  title,  there  having  been  no 
entry  or  foreclosure  under  it.  So  in  Tabele  v.  Tabcic,-  the 
widow  of  a  mortgagor,  being  made  a  party  to  a  bill  of  fore- 
closure, and  having  answered  and  submitted  to  the  decree 
of  the  Court,  was  held  entitled  to  the  use  of  one  third  of  the 
surplus  proceeds  of  the  sale,  after  paying  the  debt,  as  her 
equitable  dower,  and  to  her  costs,  to  be  paid  from  the  other 
two  thirds.  So  in  Titus  v.  Neilson,^  the  wife  of  a  mortgagor 
joined  in  a  mortgage,  and  the  latter  afterwards  made  another 
mortgage,  in  which  she  did  not  join.  The  mortgagee  filed  a 
bill  for  sale  of  the  premises,  and  after  a  decree,  but  before 
sale,  the  mortgagor  died.  Held,  his  widow  should  be  en- 
dowed from  the  surplus  proceeds,  after  paying  the  first  mort- 
gage. So  in  Coles  v.  Coles,^  it  was  held,  that  where  an 
owner  in  fee  mortgages  the  land  and  afterwards  marries,  his 
widow  shall  have  dower  from  the  equity  of  redemption, 
against  a  purchaser  of  that  equity,  though  the  mortgage  be 
still  subsisting.  Upoij  this  case  Chancellor  Kent  remarks  :  ^ 
"  Here  was  a  final  and  full  establishment  in  our  courts  of 
law  of  the  principle  not  admitted  in  the  English  courts  of 
law,  that  a  wife  could  be  endowed  of  an  equity  ol"  redemp- 
tion arising  upon  a  mortgage  in  fee,  and  this  Court  ought  to 
follow  the  rule  of  law." 

6§.  In  the  same  State,  where  a  wife  pledges  her  own  i)rop- 
erty  for  the  debt  of  the  husband,  she  may  claim  the  legal 
rights  and  privileges  of  a  surety.  But  if  she  join  in  a  mort- 
gage of  his  property,  she  cannot  claim-  after  his  death,  to  have 
it  satisfied  wholly  from  his  interest,  thus  giving  her  dower 

1  7  Johns.  278.  *  15  Johns.  31'J. 

2  1  Johns.  Ch.  45.  '  T'tus  >>■  Nelson,  5  Johns.  Ch4o/  , 

3  5  Ibid  452.  ace.  Dentoi\  v.  Nanny,  b  liarb.  bin. 


428  THE    LAW    OF   MORTGAGES.  [CII.    XV. 

in  an  unincumbered  estate,  instead  of  an  equity  of  redemp- 
tion. Thus,  if  the  property  is  sold  under  the  mortgage,  she 
shall  be  endowed  only  from  the  surplus  remaining  after  pay- 
ment of  the  debt  and  costs  of  foreclosure.  Chancellor  Wal- 
worth says  :  —  "  Strictly  speaking,  the  wife  has  no  estate  or 
interest  in  the  lands  of  her  husband,  during  his  life,  which  is 
capable  of  being  mortgaged  or  pledged  for  the  payment  of 
his  debt.  Her  joining  in  the  mortgage,  therefore,  merely 
operates  by  way  of  release  or  extinguishment  of  her  future 
claim  to  dower  as  against  the  mortgagee,  if  she  survives  her 
husband,  but  without  impairing  her  contingent  right  of  dower 
in  the  equity  of  redemption."  ^ 

64.  In  the  case  of  Van  Duyne  v.  Thayre,^  Nelson,  J., 
says  :  —  "  The  widow  of  a  mortgagor  is  entitled  to  dower  in 
the  equity  of  redemption,  upon  the  ground  that,  until  fore- 
closure or  entry,  he  holds  the  legal  title  ;  but  her  estate  is 
subject  to  the  incumbrance,  and  may  be  defeated  by  a  legal 
enforcement  of  it.^  She  may  pay  off  the  mortgage  and  there- 
by protect  herself.  The  subsequent  intermarriage  of  the 
mortgagor  is  not  to  be  permitted  to  affect  the  security,  or  any 
of  the  remedies  under  it.  If  the  mortgagee  after  forfeiture 
entered  into  possession,  either  by  the  consent  of  the  mort- 
gagor, or  by  means  of  legal  proceedings,  he  may  defend  him- 
self there,  at  least  till  his  debt  is  paid;  and  the  widow  has  no 
rights  in  this  respect,  beyond  what  would  belong  to  her  hus- 
band, the  mortgagor,  if  living."  After  the  mortgagee's  death, 
the  heirs  may  "  set  up  their  possession,  as  representing  the 
legal  estate  in  the  mortgaged  property  after  forfeiture,  in  bar 
of  the  widow's  claim  to  dower,  just  as  they  might  have  done 
if  an  ejectment  had  been  brought  against  them  by  the  mort- 
gagor, the  husband.  The  widow  may  pay  off  the  mortgage, 
and  her  right  then  is  perfect ;  and  then  a  release  of  the  equity 
of  redemption,  even  if  valid  against  the  mortgagor  and  his 
heirs,  would  be  inoperative  as  to  her." 

65.  In  Cooper  v.  Whitney,^  it  was  held,  that  dower  is  re- 

1  Hawley  v.  Bradford,  9  Paige,  200,  »  7  Johns.  283. 

201.  ■•  3  Hill,  95. 

•^  14  Wend.  235. 


CH.   XV.]  EQUITY    OF   llEDEMPTION.  429 

coverable  in  an  equity  of  redemption,  but  the  widow  lias  no 
remedy  at  law.  So,  where  A.  executed  a  mortgage,  in  which 
his  wife  did  not  join  ;  and  afterwards  conveyed  to  B.,  sub- 
ject to  the  mortgage,  his  wife  joining;  and  B.  snbsoqui-nlly 
reconveyed  to  A.  :  held,  the  wife's  inchoate  right  of  dower 
was  extinguished  by  the  deed  to  B.,  and  was  not  restored  by 
the  reconveyance  as  against  the  mortgage,  and  she  was  dow- 
able  only  of  the  equity  of  redemption.^ 

66.  In  the  same  State  it  has  been  held,  that,  where  a  hus- 
band dies  after  a  decree  of  foreclosure  sale,  and  after  the 
sale,  there  is  no  dower  in  the  surplus  proceeds.^  But  where 
a  wife  joins  in  a  mortgage,  with  the  usual  power  of  sale, 
and,  in  the  event  of  a  sale,  the  surplus  is  expressly  reserved 
to  be  paid  to  the  mortgagors,  she  has  a  right  to  have  the 
residue,  not  required  to  satisfy  the  mortgage,  whether  it  ex- 
ists in  lands  unsold,  or  in  the  proceeds  of  land  sold  under  the 
decree  of  foreclosure,  so  appropriated,  as  to  secure  her  dower, 
in  case  she  survives  her  husband.^ 

67.  A  purchaser  under  a  decree  of  foreclosure  and  sale  in 
equity,  in  the  lifetime  of  the  husband,  when  the  wife  is  not 
made  a  party,  takes  the  estate  subject  to  her  equity  of  re- 
demption. In  order  to  bar  her,  she  must  be  a  party  to  the 
suit*  And,  where  there  are  surplus  moneys  in  court,  arising 
from  the  sale,  she  is  entitled,  as  against  judgment  creditors, 
to  have  one  third  invested  for  her  benefit,  and  kept  invested 
during  the  joint  lives  of  herself  and  her  husband,  and  during 
her  own  life  in  case  of  her  surviving  her  husband,  as  and  for 
her  dower  in  such  surplus  moneys.^ 

68.  In  Massachusetts,  a  series  of  cases  may  be  found  upon 
the  same  subject. 

69.  In  the  case  of  Popkin  v.  Bumstead,^  {w)  the  wife  of  a 

1  Hoogland  v.   Watt,  2  Sandf.   Ch.         *  Denton  v.  Nanny,  8  Barb.  G18. 
148.  '  Ibid. 

2  Frost  V.  Peacock,  4  Edw.  Ch.  678.        "  8  Mass.  491. 
•5  Denton  v.  Nanny,  8  Barb.  618. 


(w)  See  infra,  §  72,  for  some  remarks  upon  this  case.    In  Eaton  v.  Si- 
monds,  (14  Pick.  107,)  Wilde,  J.,  remarks  further,  with  regard  to  it :  —  "  The 


430         .  THE    LAW    OF   MORTGAGES.  [CH.  XV. 

mortgagor  joined  in  the  mortgage,  and,  after  his  death,  a  pur- 
chaser of  his  estate  from  his  administrator  paid  the  debt,  and 
the  mortgage  was  discharged  upon  the  record.  It  was  held, 
that  the  purchaser  thus  acquired  the  legal  interest  in  the 
estate,  which  gave  him  the  whole  title,  and  that  the  mort- 
gagor's widow  was  not  thereby  let  in  to  her  dower.  In  giving 
their  opinion,  the  Court  remarked  :  ^  —  "  It  would  be  singular 
if,  when  the  tenant  had  paid  the  money  due  on  the  mortgage, 
and  supposed  he  had  thus  perfected  his  estate,  by  extinguish- 
ing the  only  incumbrance  he  knew  to  exist  upon  it,  he  should 
by  that  act  revive  the  claim  of  the  demandant,  which  she 
had  before  solemnly  renounced  under  her  hand  and  seal,  and 
which,  as  he  was  under  no  obligation,  it  cannot  be  presumed 
he  meant  to  do.  But  the  facts  produce  no  such  absurdity. 
When  the  tenant  purchased  the  equity  of  redemption,  it  be- 
longed to  him  to  pay  the  money  due  on  the  mortgage,  and 
thus  rid  his  estate  of  that  incumbrance.  Having  all  the 
equitable  interest  in  himself,  when  he  had  paid  the  money 
due  by  the  mortgage,  the  legal  estate  followed  the  equitable 
interest,  and  he  became  seised  of  the  whole  fee-simple.  If 
this  were  not  the  plain  legal  operation  of  the  transaction,  the 
law  would  construe  the  discharge  of  the  mortgage  by  the 
mortgagee  a  release  of  the  legal  estate  by  him  to  the  tenant, 
who  had  become  lawfully  possessed  of  the  equitable  interest, 

1  8  Mass.  493. 


defendant  had  purchased  of  the  administrator  of  the  mortgager,  and  thereby 
acquired  the  samo  rights  which  the  administrator  would  have  had  if  he  had 
paid  off"  tht^  mortgage  for  the  benefit  of  the  heirs.  The  mortgage  was  paid 
off  after  tlie  death  of  the  mortgagor,  when  the  widow's  right  of  dower  had 
become  perfect,  and  it  might  therefore  be  supposed,  that  she  was  not  entitled 
to  dower  without  contributing  her  share  of  the  redemption  money. 

"  Unless  the  case  can  be  supported  on  some  such  distinction,  it  is  difficult  to 
perceive  any  legal  or  equitable  ground  on  which  it  can  stand.  It  is  difficult 
also  to  say  how  that  case  could  be  decided  on  rules  of  equity,  it  being  an 
action  at  law;  but  unless  the  principle  of  contribution  does  apply,  the  case 
seems  opposed  to  the  whole  current  of  the  authorities," 


CH.  XV.J  EQUITY   OF   REDEMPTION. 


-l:il 


and  from  whom  the  consideration  for  that  discharge  Ihnv.-d, 
rather  than  such  a  mischief  should  follow." 

70.  In  the  case  of  Bird  v.  Gardner,^  Moies  conveyed  the 
premises  in  question  to  Bird,  having  previously  made  a  mort- 
gage to  Hawes,  which  Hawes  had  assigned  to  Gardner,  the 
tenant.     Bird  then  mortgaged  anew  to  Gardner,  and  after- 
wards released  to  him  all  his  right  and  title  in  and  to  the 
premises,  and  Gardner  entered  and  remained  still  in  posses- 
sion.    The  widow  of  Bird  brings  a  writ  of  dower  against 
the   tenant.      Held,  the    action    could   not   be   maintained. 
Sewall,  J.,  remarks:  —  "  The  first  mortgage  remains  unpaid  ; 
and  the  tenant  has  therefore  the  legal  title,  as  it  was  con- 
veyed by  Moies,  before  Bird  had  any  interest  in  the  prem- 
ises.     It    is    upon   the  strength   of  that   title,   by    Hawes's 
assignment,  vested  in  the  tenant,  that  he  is  enabled  to  resist 
the  demand  of  dower.     The  title  of  Bird  was  a  seisin  dur- 
ing the  coverture,  whereof  the  widow  was  entitled  to  dower 
against  all  other  persons  than  Moies's  mortgagee  and  his 
assigns.      But  against  them,  until  the   redemption  of   the 
mortgage,   the  demandant's    husband   had  nothing  but  an 
equity  of  redemption,  no  seisin  of  any  estate,  of  which  his 
wife  was  dowable.     It  is  well  settled  that  a  wife  is  not  dow- 
able  of  an  equity  of  redemption.     The  demandant's  right  of 
dower  might  be  maintained  against  the  second  mortgage, 
that  which  her  husband  in  his  lifetime  made  to  the  tenant,  if 
his  title  under  the  first  mortgage  were  removed  ;  and  it  may 
be  that  in  a  court  of  chancery,  having  a  general  jurisdiction 
in  matters  of  equity,  the  demandant  might  have  relief,  and 
her  demand  of  dower  might  be  enforced  by  some  specific 
remedy,  to  compel  the  representative  of  the  mortgagor  to 
redeem.     But  whether  this  can  be  done  in  this  court,  with 
the  very  limited  jurisdiction  indulged  to  it,  which  has  any 
resemblance  to  the  powers  of  a  court  of  chancery,  is  at  least 
questionable.     If  there  is  any  remedy  in  this  jurisdiction,  it 
must  be  in  the  form  of  a  bill  in  equity ;  which  it  may  be  the 
demandant  and  the  representatives  of  Benjamin   Bird  are 

1  10  Mass.  3t>4. 


432  THE   LAW    OF   MORTGAGES.  [CH.  XV. 

competent  to  maintain  for  the  redemption  of  the  first  mort- 
s^age.  The  representatives  of  Bird  are  competent  to  redeem 
the  two  mortgages,  and  the  claim  of  dower  by  the  widow 
might  be  adjusted  by  some  equitable  arrangement,  that 
would  do  justice  between  her  and  the  creditors  or  heirs  at 
law  of  the  husband.  But  she  has  at  present  no  remedy  at 
law  against  the  demandant." 

71.  In  the  case  of  Bolton  v.  Ballard,^  Parker,  C.  J.,  says  :  — 
"  But  for  the  circumstances,"  &c.,  "  this  state  of  facts  would 
present  the  general  question,  whether  a  widow  can  have 
dower  of  an  equity  only ;  a  question  which  has  not  received 
a  direct  judicial  decision  with  us.  There  are  strong  reasons 
in  favor  of  dower  under  such  circumstances;  and  by  the 
common  law,  which  in  this  regard  is  founded  in  public  policy, 
as  well  as  upon  a  due  regard  to  the  situation  of  widows, 
dower  is  a  favored  estate."  After  stating  the  general  rule, 
that  as  to  all  but  the  mortgagee  the  mortgagor,  until  fore- 
closure or  possession  taken,  remains  owner  of  the  estate,  he 
.proceeds  thus :  —  "  There  seems  to  be  no  reason  then  why 
the  wife  should  not  be  endowed,  so  long  as  her  claim  will 
not  interfere  with  the  rights  of  the  mortgagee.  For  the  hus- 
band was  seised  in  fact,  after  the  execution  of  the  mortgage, 
against  all  but.  him  to  whom  he  had  thus  conveyed;  and  if 
it  should  be  for  the  interest  of  the  wife,  as  in  some  cases  it 
may  be,  to  redeem  the  estate,  there  can  be  no  good  reason 
why  she  should  not  enjoy  an  estate  which,  but  for  an  incum- 
brance which  she  has  removed,  would  always  have  been 
subject  to  her  claim.  This  right  may  be  enforced  in  Eng- 
land by  the  intervention  of  the  court  of  chancery.  •  And  there 
seems  to  be  no  reason  why  the  wife  here  should  not  be  placed 
in  a  situation  which  may  enable  her  to  redeem  or  to  hold  the 
estate,  if  it  should  otherwise  be  redeemed ;  as  it  may  be  by 
the  mortgagee's  pursuing  his  remedy  for  his  debt  against 
the  personal  estate  of  the  husband  after  his  decease.  It  is 
enough  that  the  law  will  not  permit  the  wife  to  affect  the 
contract  of  the  husband,  made  with  the  mortgagee  before  the 

1  13  Mass.  229,  230. 


CH.  XV.]  EQUITY    OF   llEDEMPTION. 


438 


marriage.  No  other  person  has  any  lawful  interest  in  ex- 
cluding her  from  the  customary  right  of  the  wife  in  the  estate; 
of  her  husband." 

72.  In  the  above  case  the  facts  were,  that  E.  Bolton  mort- 
gaged the  premises  to  Howard  to  secure  a  bond  of  the  same 
date,  and  afterwards  died,  leaving  G.  Bolton   his  heir,  who 
conveyed  to  S.   Bolton,  December  19,  1796.     On  the  same 
day  S.  Bolton   conveyed  to   the  tenant,  he  agreeing  to  pay 
Howard  the  balance  due  on  the  bond,  portions  of  it  having 
been  paid,  and  the  rest  of  the  consideration  to  S.  Bolton, 
both  which  were  done,  and  the  bond  discharged.     The  ten- 
ant immediately  entered,  and  remained  in  possession  to  the 
date  of  the  writ.     On  the  20th  of  December,  1802,  Howard, 
by  deed  dated  December  19, 1796,  and  indorsed  on  the  mort- 
gage, released  to  the  tenant  all  his  right  in  the  land,  for  a 
consideration  named.     The  plaintiff,  being  the  widow  of  S. 
Bolton,  brings  an  action  against  the  tenant  for  her  dower. 
Upon  these  facts,  the  Court,  after  making  the  general  re- 
marks above  quoted,  proceed  to  decide,  that,  whether  a  wife 
is  dowable  of  an  equity  or  not,  the  demandant  must  prevail 
in  this  case,  because  the  bargain  between  S.  Bolton  and  the 
tenant,  that  the  latter  should  pay  off  the  mortgage,  the  appro- 
priation of  enough  of  the  consideration  for  that  purpose,  and 
the  payment  of  the  money  and  discharge  of  the  bond  on  the 
same  day  with  the  deed  to  the  tenant,  were  equivalent  in 
effect  to  a  payment  of  the  mortgage  by  S.  Bolton  the  day 
before  he  conveyed  to  the  tenant,  in  which  case  he  would 
have  been  restored  to  an  indefeasible  estate  in  fee,  and  his 
seisin  would  have  been  perfect.     "  It  is  not  stated,  whether 
the  payment  or  the  delivery  of  the  deed  had  precedence  in 
point  of  time.     But,  to  execute  the  real  intention  of  the  par- 
ties, it  must  be  supposed  that  the  incumbrance  was   first 
removed.     Then  S.  Bolton  was  seised,  so  as  to  vest  a  right 
of  dower  in  his  wife  ;  and,  although  this  may  be  considered 
in  one  view  as  a  seisin  for  an  instant ;  yet  it  is  to  be  taken 
in  connection  with  the  former  seisin,  which,  ahhough  affected 
by  the  rights  of  the  mortgagee,  was  always  in  force  againtJt 

VOL.  I.  37 


434  THE   LAW   OF   MORTGAGES.  [CH.   XV. 

every  other  person.  And  when  those  rights  ceased  to  exist, 
the  estate  was  as  if  it  had  never  been  incumbered."  The 
Court  then  proceed  to  notice  the  distinctions  between  this 
and  other  previous  cases  on  the  same  subject.  In  Popkin  v. 
Bumstead,  the  widow  had  released  her  dower,  and  the  hus- 
band had  done  nothing  towards  redeeming.  In  Holbrooli  v. 
Finney,  (4  Mass.  566,).the  husband  was  never  seised,  having 
taken  a  deed  and  given  back  a  mortgage  simultaneously. 

73.  In  another  case  decided  by  the  same  Court,^  a  wife 
joined  her  husband  in  a  mortgage  and  released  her  dower. 
After  his  death,  she  represented  the  fact  to  the  Probate  Court, 
and  in  consideration  thereof  prayed  for  a  meet  sum  from 
the  personal  estate ;  and  an  allowance  was  made  her  of 
one  thousand  dollars.  Subsequently  the  administrator  dis- 
charged the  mortgage.  Held,  the  widow  was  entitled  to  her 
dower,  (x) 

74.  The  widow  of  a  grantee  of  an  equity  of  redemption, 
conveyed  to  him  during  the  coverture,  and  by  him  conveyed 
to  the  mortgagee,  without  her  release  of  dower  therein,  is 

1  Hildreth  v.  Joues,  13  Mass.  525. 

(a;)  Mortgage,  with  release  of  dower.  Upon  a  sale  of  the  equity  of  re- 
demption on  execution,  the  defendant  purchased  it,  and,  having  paid  the 
mortgage  debt,  claimed  an  assignment  of  the  mortgage.  The  mortgagee 
said,  an  assignment  would  be  unnecessary,  but  discharged  the  mortgage  on 
the  records.  Held,  the  mortgage  was  extinguished,  and  the  widow  entitled  to 
dower,  and  to  maintain  a  bill  In  equity  for  redemption.  Eaton  v.  Simonds, 
14  Pick.  98. 

The  execution  purchaser,  under  the  same  cii'cumstances,  having  taken 
immediate  possession,  obtained  an  assignment  of  the  mortgage,  and  remained 
In  possession  more  than  three  years  after  the  assignment ;  the  husband  died, 
but  no  notice  was  given  to  the  wife,  that  the  purchaser  was  in  possession  for 
condition  broken.  Held,  the  wife  might  redeem,  in  order  to  obtain  dower. 
Ibid. 

Held,  also,  that  the  defendant  was  not  chargeable  with  the  rents  and 
profits  received  during  the  husband's  life,  but  must  account  for  those  re- 
ceived since  his  death.  So  also  with  the  allowance  for  repairs.  Living  the 
husband,  he  occupied  under  his  title  as  purchaser,  afterwards,  as  mortgagee. 
Ibid. 


CII.  XV.]  EQUITY   OP   REDEMPTION. 


43i 


entitled  to  dower  in  such  equity,  as  against  the  morti^'a^ee 
and  his  assignee  of  the  mortgage  and  the  equity.  And  jios- 
session  taken  by  the  mortgagee,  after  the  conveyance  of  the 
equity  to  him,  for  the  purpose  of  foreclosing,  and  the  contin- 
uance of  that  possession  by  his  assignee,  for  the  same  pur- 
pose, will  not  bar  such  widow's  dower,  though  she  knows 
that  possession  is  taken  and  continued,  unless  notice  is  given 
to  her,  after  her  husband's  death,  and  three  years  before  she 
claims  her  dower,  that  possession  was  taken  and  held  for  llie 
purpose  of  foreclosure.^ 

75.  Bill  in  equity  to  redeem  two  mortgages,  made  by  one 
deceased,  in  both  which  mortgages,  one  of  the  defendants, 
the  wife  of  the  mortgagor,  released  her  dower.  After  the 
mortgagor's  death,  the  mortgages  were  assigned  to  the  other 
defendant.  The  plaintiff  was  lawful  owner  of  the  equities 
of  redemption,  and  admitted  to  have  the  right  of  redeeming, 
upon  payment  of  the  mortgage  debts.  He  also  claimed 
under  an  assignment  of  the  mortgages,  made  to  the  heir  of 
the  mortgagor.  Dower  had  been  set  off  to  the  widow,  as  if 
no  mortgage  had  been  made,  and  the  defendants  denied  the 
plaintiff's  right  to  an  assignment  of  the  mortgages,  upon  the 
ground  that  such  assignment  of  dower  was  made  at  a  time 
when,  from  the  long  delay  of  the  plaintiff  to  redeem  the 
mortgages,  they  had  no  reason  to  suppose  tiiat  he  ever  in- 
tended so  to  do.  Held,  such  delay  did  not  aflfect  the  plain- 
tiff's right  to  redeem,  w^hich  could  be  defeated  only  Ijy  a 
foreclosure  of  the  mortgages  ;  that  the  assignment  of  dower 
by  the  assignee  of  the  mortgages  was  not  binding  on  the 
plaintiff,  the  widow  having  no  right  of  dowser  without  con- 
tributing her  proportion  towards  the  redemption  ;  and  tliat, 
if  she  declined  thus  to  contribute,  the  plaintiff  might  redeem, 
on  payment  of  the  two  mortgages,  deducting  the  rents  and 
profits,  and  have  an  assignment  of  the  mortgages. 

76.  A  writ  of  entry  to  foreclose  a  mortgage  may  be  main- 
tained, and  a  conditional  judgment  rendered,  against  a 
widow  in  possession,  under  an  assignment  of  dower  by  the 

1  Lund  ;;.  Woods,  11  Met.  566.  -  Niles  v.  Nye,  13  Met.  130. 


436  THE   LAW    OF   MORTGAGES.  [CH.  XV. 

Probate  Court ;  though  such  assignment  is  void.  Although, 
in  general,  a  widow  has  a  mere  right,  but  no  seisin,  till 
assignment  of  dower;  by  statute  she  may  occupy,  with  the 
consent  of  the  heirs,  before  such  assignment.  Hence,  the 
defendant  in  this  case  is  not  a  mere  stranger.  She  holds 
under  and  in  right  of  her  husband,  and  may  at  her  election 
have  a  conditional  judgment.^ 

77.  In  the  case  of  three  mortgages,  the  wife  of  the  mort- 
gagor having  released  her  dower  in  the  second,  and  the  third 
mortgagee  paid  and  discharged  the  other  mortgages  without 
the  know-ledge  or  consent  of  the  mortgagor  ;  held,  the  widow 
of  the  mortgagor  might  claim  dower  against  the  third  mort- 
gagee. The  Court  say,  —  the  tenant  (claiming  under  the 
third  mortgagee)  "  took  his  conveyance  subject  to"  (the  sec- 
ond mortgage),  "  and  it  may  be  presumed  that  the  considera- 
tion paid  was  less  by  the  amount  of  that  incumbrance.  He 
paid  off  the  incumbrance  to  clear  his  own  estate,  and  took  a 
discharge.  The  fact  that  the  tenant  did  not  take  an  assign- 
ment, leads  to  the  conclusion,  that  he  was  to  pay  the  mort- 
gage as  part  of  the  purchase-money."  ^ 

78.  In  Maine,  the  following  cases  upon  this  subject  have 
occurred. 

79.  A.  conveyed  to  B.,  and  B.  gave  back  a  mortgage  to 
secure  the  consideration.  Subsequently  A.  became  indebted 
to  C.  on  a  note  for  an  amount  less  than  the  mortgage,  and, 
by  an  agreement  between  all  the  parties,  at  the  same  time, 
the  mortgage  was  discharged  by  A.,  upon  his  receiving  his 
note  to  C,  and  the  balance  in  money  ;  and  B.  mortgaged  to 
C.  to  secure  the  amount  of  the  note.  Held,  the  widow  of  B., 
who  was  his  wife  when  all  these  conveyances  were  made, 
was  entitled  to  dower  as  against  C,^  So  a  widow  is  not 
barred  of  her  dower  against  a  mortgagee  who  has  foreclosed, 
she  not  having  joined  in  the  mortgage,  by  a  release  of  dower 
to  the  purchaser  of  the  equity.* 


'  Kaynliam    r.   Wilniartli,   13   Met.         •'  Gage  r.  WarJ,  25  M.iinc,  IQl. 
414.  *  Littlefield  v.   Crocker,  30  Maine, 

-  Wedge  V.  Moore,  G  Cusli.  8,  10.  192. 


CII.  XV.]  EQUITY    OF   llEDEMPTION.  437 

80.  In  New  Hampshire,  a  widow  has  dower,  in  a  right  in 
equity  to  redeem,  against  all  persons,  except  mortgagees  and 
those  claiming  under  them  ;  against  whom  she  cannot  be 
endowed,  except  by  payment  of  the  mortgage.^  Nor  can  she 
claim  dower  against  any  other  person,  who,  having  an  inter- 
est in  the  redemption,  has  in  fact  redeemed,  except  by  .pay- 
ment of  a  contribution.^  (y)  Bat,  if  the  administrator  redeem 
with  assets  of  the  estate,  she  is  let  in  to  dower  without  con- 
tribution.^ And  in  case  of  a  mortgage  daring  coverture,  the 
wife  relinquishing  dower,  on  payment  of  the  notes  secured 
by  the  mortgage,  out  of  the  estate  of  the  mortgagor,  by  the 
administrator  ;  the  wife  is  entitled  to  dower.'* 

81.  It  has  been  held  in  Pennsylvania,^  that  a  mortgage 
made  without  consideration,  and  for  the  purpose  of  depriv- 
ing the  wife  of  the  mortgagor  of  her  dower,  is  void  as  to 
the  widow  and  creditors,  though  binding  upon  the  adminis- 
trator. A  Court  of  Chancery,  in  such  case,  will  enjoin  the 
mortgagee  from  proceeding  to  a  judgment,  and  a  sale  of  the 
whole  premises,  but  will  authorize  a  sale,  subject  to  the 
claim  of  dower.  Upon  a  scire  facias  by  the  mortgagee 
against  the  widow  to  foreclose,  the  Court  will  admit  the 
widow  to  defend  ;  and,  if  there  is  a  bond  fide  debt,  there 
shall  be  a  verdict  and  judgment,  giving  to  the  mortgagee  a 
lien  on  the  whole  interest  as  to  the  real  debt,  and  for  the 
whole  amount,  subject  to  the  widow's  thirds  ;  or,  if  the 
mortgage  was  fraudulently  given,  without  consideration,  and 
for  the  purpose  of  defeating  the  wife,  a  verdict  and  judg- 
ment for  the  plaintiff,  subject  to  the  widow's  dower.  But 
the  same  principle  does  not  apply  to  the  provision  made  for 
the  widow  in  that   State  by   the  intestate  acts,  in   lieu   of 

1  Eossiter  v.  Cossit,  15  N.  H.  38.  *  Mathewson  v.  Smith,  1  Angell,  22. 

^  Ibid.  5  Killinger  v.  Keidenhauer,  6  S.  & 

3  Ibid.  E.  531. 


(?/)  In  Clough  V.  Elliott,  3  Fost.  182,  it  is  held,  that,  if  land  subject  to  a 
charge  is  devised,  the  -widow  of  the  devisee  cannot  have  dower,  without  con- 
tributing her  proportion  of  the  charge. 
37* 


438  THE    LAAV    OF   MORTGAGES.  [CH.    XV. 

dower.  This  is  a  contingent  right,  with  none  of  the  com- 
mon-law privileges  of  dower,  and  subject  to  be  defeated  by 
the  acts  of  the  husband.  Therefore,  in  the  case  supposed, 
the  mortgage  cannot  be  ivholly  avoided,  upon  the  ground 
that  the  widow  might  have  been  entitled  to  the  whole  estate, 
if  the  intestate  died  without  kindred. 

82.  It  is  held  in  Ohio,  that,  where  land  is  mortgaged  by 
the  husband,  the  condition  broken  before  marriage,  and  the 
equity  of  redemption  released  by  him  during  the  coverture, 
his  widow  is  not  entitled  to  dower.^ 

83.  With  regard  to  the  terms  upon  which  the  widow  will 
be  allowed  to  claim  her  dower,  and  more  especially  upon  the 
question,  whether  she  must  pay  the  whole  mortgage  debt, 
or  only  her  proportional  share ;  the  following  remarks  and 
decisions  have  been  made.  The  general  principle  would 
seem  to  be,  though  not  without  some  qualifications,  that, 
like  all  other  persons  claiming  a  partial  or  qualified  interest 
in  mortgaged  property,  a  dowress,  in  order  to  redeem,  must 
pay  the  whole  debt,  with  the  right  to  retain  the  whole  estate, 
till  equitably  reimbursed  by  others,  jointly  interested.  Thus 
it  is  held  in  Massachusetts,  that  where  the  purchaser  of  ari 
equity  of  redemption  pays  the  mortgage  debt  and  takes  an 
assignment  of  the  mortgage,  the  mortgagor's  widow  cannot 
redeem  without  paying  the  whole  mortgage  debt.^  It  is 
said  3  (per  Wilde,  J.)  :  —  "Where  several  are  interested  in 
an  equity  of  redemption,  and  one  only  is  willing  to  redeem, 
he  must  pay  the  whole  mortgage  debt ;  and  the  others  inter- 
ested in  the  equity,  who  refuse  to  redeem,  are  not  compel- 
lable to  contribute  ;  for  it  would  be  unreasonable  to  compel 
a  party  to  redeem,  w4ien  perhaps  it  might  be  for  his  benefit 
to  suffer  the  mortgage  to  be  foreclosed.  The  mortgagee, 
however,  is  not  to  be  entangled  with  any  question  which 
may  arise  between  the  owners  of  the  equity  in  relation  to 
contribution,  but  has  the  right  to  insist  on  an  entire  redemp- 
tion.     If,  therefore,  several  estates   are  mortgaged  by  one 

1  Rands  v.  Kendall,  lo  Ohio,  G71.  «  Ibid.  152. 

■^  Gibson  v.  Crehore,  5  Pick.  14(3. 


CH.  XV.]  EQUITY    OF   REDEMl'TIOX.  439 

mortgage,  and  the  mortgagor  afterwards  conveys  the  estates 
separately  to  different  persons,  although  each  owner  of  llic 
separate  estates  may  redeem  ;  yet  it  can  only  be  allowed  l)y 
payment  of  the  whole  mortgage  debt..  And  the  party  so  re- 
deeming will  be  entitled  to  hold  over  the  whole  estate  mort- 
gaged, until  he  shall  be  reimbursed  what  he  has  been  thus 
compelled  to  pay  beyond  his  due  proportion.  He  is  consid- 
ered as  assignee  of  the  mortgage,  and  stands,  after  such  re- 
demption, in  the  place  of  the  mortgagee,  in  relation  to  the 
other  owners  of  the  equity.  So,  if  there  be  tenant  for  life 
and  remainder-man  of  an  equity,  either  may  redeem,  but  not 
without  paying  the  whole  mortgage.  In  like  manner,  a 
dowress  or  jointress  of  lands  mortgaged  may  redeem,  she 
paying  the  mortgage  debt,  and  may  hold  over,  if  the  heir 
refuses  to  contribute,  until  she  and  her  executor  shall  be 
repaid  with  interest."  So  in  case  of  a  writ  of  dower,  by  the 
widow  of  a  mortgagor,  against  a  purchaser  of  the  equity  of 
redemption  from  the  mortgagor's  administrator,  who  sold 
under  a  license  from  the  Probate  Court ;  the  defendant  hav- 
ing, paid  the  mortgage  debt,  but  the  plaintiff  not  contrib- 
uted or  offered  to  contribute  anything  towards  the  discharge 
of  the  mortgage  ;  held,  the  action  could  not  be  maintained. 
The  Court  say :  "  This  demandant  was  entitled  to  her 
dower  in  the  equity  of  redemption."  But  a  widow  "  can 
maintain  no  writ  of  dower  against  the  mortgagee  or  his 
assignees,  until  she  has  redeemed  the  land,  by  paying  the 
•  amount  due  on  the  mortgage.  Nor  against  any  person,  who, 
having  the  right  to  redeem  the  land,  has  paid  the  amount 
due  on  the  mortgage,  until  she  has  contributed  her  due  pro- 
portion of  the  money  thus  paid,  according  to  her  interest." ' 
And  in  a  late  case  in  Massachusetts,^  Shaw,  C.  J.,  thus  states 
the  rules  of  law  upon  this  subject.  «  The  demandant,  hav- 
ing thus  joined  with  her  husband  in  a  m.ortgage  to  secure 
the  payment  of  a  debt,  has  barred  herself  of  her  right  of 
dower,  if  necessary  to  give  effect  to  her  act  of  release  ;  that 

1  Cass  V.  Martin,  6  N.  H.  25,  26.  '"  Brown  v.  Laiiliaiu,  3   L'usli.  553. 

obi. 


440  THE    LAW    OF   MORTGAGES.  [CH.  XV. 

is,  SO  far  as  shall  be  necessary  to  secure  the  payment  of  the 
debt,  for  which  the  estate  was  thus  hypothecated.  After 
such  an  alienation,  she  can  only  avoid  the  effect  of  her  deed 
and  be  restored  to  her  right  of  dower,  in  one  of  two  modes. 
"  1.  When  the  debt  shall  be  paid  and  satisfied  by  the  hus- 
band or  by  some  person  acting  in  his  behalf,  and  in  his  right, 
so  that  the  mortgage  is  extinguished,  by  means  of  which 
the  whole  object  and  purpose  of  giving  it  is  accomplished. 
2.  By  a  redemption  by  payment  of  the  'debt  herself.  The 
latter  can  only  be  sought  by  a  process  in  equity,  and  tender- 
ing the  payment  of  the  mortgage  debt."  "  In  order  to  such 
payment,  so  as  to  extinguish  the  mortgage,  the  debt  must  be 
paid  by  the  husband,  or  out  of  the  husband's  funds,  or  by 
some  person,  as  personal  representative,  assignee,  or  person 
standing  in  some  other  relation,  which  in  legal  effect  makes 
him  mortgagor  and  debtor,  and  one  whose  duty  it  is  to  pay 
and  discharge  the  mortgage  debt." 

84.  In  the  same  State,  however,  it  had  been  previously 
^held,  that  a  widow,  who  has  released  her  dower  in  a  mort- 
gage deed,  may  redeem  upon  paying  her  due  proportion  of 
the  mortgage  debt ;  that  the  value  of  her  life-estate  is  to  be 
adjusted,  by  taking  into  consideration  her  age  and  the  state 
of  her  health,  and  by  ascertaining  the  value  of  the  residue  of 
the  estate,  including  the  reversion  of  her  third  part ;  and  her 
proportion  of  the  debt  will  be  according  to  the  proportional 
value  of  her  estate,  and  that  of  the  defendant.^  (z) 

1  Van  Vrouker  v.  Eastman,  7  Met.  157. 


(z)  This  case  turned  upon  other  pohits,  and  it  does  not  appear  to  have 
been  claimed  for  the  defendant,  that  the  plaintilT  was  bound  to  pay  the 
xohole  mortjr&ge  debt.  McCabe  v.  Bellows,  7  Gray,  149,  per  Thomas,  J. 
Judge  Thomas  further  remarks:  "  In  Gibson  v.  Crehore,  the  decree  was  for 
the  widow  to  redeem  by  paying  her  proportional  part ;  but  this  was  upon 
the  election  of  the  mortgagees,  the  Court  having  expressly  decided  that  she 
could  redeem  on  no  other  terms  but  by  the  payment  of  the  whole  debt.  5 
Pick.  153."  And  that  the  case  of  "Van  Vronker  v.  Eastman  is  not,  when 
carefully  examined,  inconsistent  with  Gibson  v.  Crehore  and  Brown  v.  Lap- 


CH.  XV.]  EQUITY   OP   REDEMPTION.  1  }  | 

85.  In    Massachusetts,   Judge   Wilde   remarks,'  tliat   tlir 
widow   may   redeem  without    any   previous  assignment   of 

1  Gibson  v.  Crehore,  5  Pick.  14G,  141),  150. 


ham.     Ibid.     See  Palmes  v.  Dan  by,  Prec.  Chanc.  1.37  ;  Tillingliast  v.  Prj-, 
1  Ang.  (R.  I.)  53. 

The  only  Intelligible  distinction  would  seem  to  be,  that,  whore  redemp. 
tion  is  sought  from  the  mortgagee,  the  whole  debt  must  be  i)ai(I ;  but  where 
some  other  party,  claiming  under  the  mortgagor,  redeems,  then,  in  order  to 
redeem  from  such  party,  the  widow  shall  pay  only  her  share.  McCabe  v. 
Bellows,  7  Gray,  148.  In  a  case  in  Massachusetts,  it  is  said  by  Judge  Wilde  : 
—  "  In  Swaine  v.  Perine,  5  Johns.  482,  it  was  held,  that,  if  the  heirs  pay  a 
mortgage,  the  wife  shall  contribute  as  to  the  sum  paid  by  them ;  but  as  far 
as  the  husband  had  reduced  the  mortgage,  it  was  a  reduction  for  her  benefit 
as  well  as  his.  And  the  same  rule  applies  to  a  payment  by  the  husband's 
assignee  during  his  life."  Eaton  v.  Simonds,  14  Pick.  108."  (Of  this  case  — 
Eaton  V.  Simonds  —  it  is  remarked,  [per  Thomas,  J.,  Newton  v.  Cook,  4 
Gray,  50,]  it  "  was  decided  before  the  passage  of  the  statutes  now  in  force, 
and  could  not  have  been  decided  as  it  was,  under  Rev.  Sts.  c.  60,  §  2.") 
The  Revised  Statutes  of  Massachusetts,  ch.  60,  §  2,  provide,  that  if,  upon  a 
mortgage  made  by  the  husband,  the  wife  release  her  dower,  or  if  the  hus- 
band be  seised  of  land  subject  to  any  mortgage  which  is  valid  against  the 
wife  ;  she  shall  have  dower  as  against  all  except  the  mortgagee,  and  those 
claiming  under  him,  provided,  that  if  the  heir  or  other  person  claiming  under 
the  husband  shall  redeem  the  mortgage,  the  widow  shall  either  repay  such 
part  of  the  money  paid  by  him,  as  shall  be  equal  to  the  proportion  which 
her  interest  bears  to  the  whole  value  of  the  premises,  or  she  shall,  at  her 
election,  be  entitled  to  dower  only  according  to  the  value  of  the  estate,  after 
deducting  the  money  so  paid  for  the  redemption  thereof. 

When  a  person- claiming  under  the  husband  redeems  a  mortgage  which 
was  valid  and  effectual  against  the  wife,  she  may,  under  Rev.  Sts.  c.  CO,  §  2, 
by  action  at  law,  have  her  dower  assigned  to  her,  first  deducting  from  the 
value  of  the  land  the  amount  paid  for  the  redemption  of  the  mortgage.  And 
a  general  demand  of  dower  is  sudicient  to  support  such  an  action.  Xewton 
V.  Cook,  4  Gray,  46. 

In  Vermont,  the  Probate  Court  have  exclusive  jurisdiction  of  the  asMgn- 
ment  of  dower;  and,  if  the  dowress  claim  to  have  a  special  rule  of  appor- 
tionment, can  alone  establish  such  rule  in  her  favor.  But,  if  the  Probate 
Court  assign  dower,  generally,  in  an  equity  of  redemption,  without  de- 
termining the  proportion  which  the  widow  shall  pay  towards  the  incum- 
brance, it  is  equivalent  to  saying,  that  it  shall  be  in  proportion  to  her  estate; 
and  the  Court  of  Chancery  have  jurisdiction,  upon  a  bill  brought  by  tiie 
dowress  for  that  purpose,  to  determine  the  proportion  upon  the  general  rule 


442  THE   LAW    OF   MORTGAGES.  [CH.    XV. 

dower,  because  such  assignment  does  not  affect  her  equitable 
right  of  redemption,  and  she  has  no  right  to  demand  such 
assignment  as  against  the  mortgagee,  before  redeeming,  nor 
is  an  assignment  by  the  heirs  necessary,  because  she  could 
not  redeem  a  part  without  redeeming  the  whole.  And  the 
Supreme  Court  has  full  jurisdiction  of  the  claim,  under  the 
statute  which  provides  a  bill  in  equity  for  the  mortgagor  "  or 
other  person  claiming  as  aforesaid,"  and  that  judgment  may 
be  rendered  agreeably  to  equity  and  good  conscience  ;  and  also 
the  statute  relating  to  trusts  and  the  settlement  of  estates,  {a) 


of  equity  in  such  cases,  except  so  far  as  the  parties  may  have  varied  that  rule, 
by  an  agreement  executed  at  the  time.     Danforth  v.  Smith,  23  Verm.  247. 

The  mere  fact,  that  the  estate  has  been  purchased  subject  to  the  incum- 
brance and  to  dower,  is  not  sutlicient  to  raise  any  special  rule  of  apportion- 
ment.    Ibid. 

The  dowress  may  bring  a  bill  in  chancery,  for  apportionment,  whenever 
the  incumbrance  becomes  due,  without  first  paying  it.  Ibid.  The  general 
rule  of  e(|uity  is,  that  all  the  estates  concerned,  whether  defined  by  quantity 
of  interest  and  duration,  or  by  extent  of  territory,  shall  contribute  towards 
the  incumbrance,  according  to  their  relative  value  when  the  contribution 
becomes  obligatory,  which  is,  when  the  debt  falls  due.     Ibid. 

According  to  this  rule,  when  a  widow  is  endowed  In  an  equity  of  redemp- 
tion, one  third  of  the  Incumbrance  should  be  placed  upon  the  land  covered 
by  the  dower,  and  the  remaining  two  thirds  upon  the  residue  of  the  land 
covered  by  the  Incumbrance.     Danforth  v.  Smith,  23  Verm.  24  7. 

But  it  Is  competent  for  the  dowress,  the  mortgagee,  and  the  purchaser  of 
the  equity  of  redemption,  subject  to  the  Incumbrance  and  the  dower,  to 
agree  upon  a  different  mode  of  apportionment;  and  if  they  agree,  although 
by  parol,  that  all  of  the  Incumbrance,  except  a  certain  part,  should  be  paid 
from  that  portion  of  the  mortgaged  premises  not  covered  by  the  dower,  this 
agreement,  when  executed,  will  be  Irrevocable,  and  the  Court  of  Chancery 
will  have  regard  to  It,  In  apportioning  the  residue  of  the  incumbrance  be- 
tween the  dowress  and  the  owner  of  the  reversion.     Ibid. 

In  apportioning  an  Incumbrance  between  a  dowress  and  the  owner  of  the 
reversion,  it  is  not  competent  for  the  Court  of  Chancery  to  determine  any 
sum,  which  shall  be  expended  by  the  dowress,  each  year,  for  repairs. 
Ibid. 

There  is  no  rule,  in  Vermont,  requiring  the  dowress  of  an  equity  of 
redemption  to  keep  down  the  interest  upon  the  Incumbrance.     Ibid. 

(o)  The  plaintilT,  the  widow  of  a  mortgagor,  who  had  joined  In  the  mort- 


CH.  XV.J  EQUITY   OP   REDEMPTION.  443 

86.  The  Revised  Statutes  of  Massachusetts,  c.   00,  §  3, 
provide,  that  when  a  widow  is  entitled  to  dower,  in  lands  of 


gage,  brings  a  bill  in  equity,  against  an  assignee  of  the  mortiragc,  and  an 
assignee  of  the  equity  of  redemption,  praying  to  redeem,  and  also  an  asM.r,,. 
ment  of  dower.  It  was  held,  that  the  latter  prayer  was  simply  void,  and 
therefore  did  not  render  the  bill  mnltifiirious.  Also,  that  the  bill  to  rcileem 
was  properly  brought  against  both  defendants,  inasmuch  as  a  suitable  decree 
would  require  an  account  between  the  plaintiff  and  the  assignee  of  the 
equity  of  redemption.     McCabe  v.  Bellows,  1  Allen,  2G9. 

The  following  miscellaneous  cases  have  been  decided  upon  this  subject. 
Mortgage  of  two  parcels  of  land,  in  which  there  was  a  right  of  dower.  The 
mortgagor  afterwards  conveyed  all  his  interest  in  one  of  them.  A.,  and,  in 
consideration  of  the  wife's  releasing  her  dower,  conveyed  to  her  a  life-estate 
in  the  other  parcel,  B.,  and  she  entered  and  took  the  profits.  The  piaintilT 
purchased  from  the  mortgagor  the  lot  B.  One  of  the  defendants,  having 
purchased  lot  A.,  takes  an  assignment  of  the  mortgage,  and  enters  for  fore- 
closure. The  plaintiff  brings  a  bill  to  redeem  against  the  assignee  of  the 
mortgage  and  the  wife.  Held,  the  wife  was  not  bound  to  contribute  towards 
the  redemption,  nor  to  account  for  the  profits  of  the  second  parcel,  the  lease 
for  life  having  been  made  to  her  in  lieu  of  her  right  of  dower  in  both  par- 
cels. Also,  that  as  the  other  defendant  could  not  have  compelled  the  wife 
to  pay  over  the  rents  and  profits  of  lot  B.,  without  giving  her  a  right  of 
dower  in  both  lots ;  he  was  not  bound  to  account  for  them,  and  that  the 
plaintiff  had  no  equitable  claim  to  them,  as  he  purchased  after  the  lease  for 
life,  and  consequently  at  a  reduced  price  on  that  account.  Also,  that  the 
assignee  of  the  mortgage  was  bound  to  account  for  the  rents,  &c.,  of  lot  A. 
from  the  time  of  his  entry  to  foreclose.  Also,  that  the  plaintiff,  upon  pay- 
ing the  whole  mortgage  debt,  deducting  the  rents  and  profits  of  lot  A.,  should 
hold  the  whole,  except  the  part  leased,  till  reimbursed  the  amount  paid  by 
him  over  his  share  of  the  mortgage  debt.     Brooks  v.  Ilarwood,  S  Pick.  407. 

The  owner  of  land  made  a  mortgage  of  it,  having  previously  made  a  writ- 
ten contract  for  the  erection  of  a  building  thereon,  which  contract  was 
recorded,  for  the  purpose  of  giving  the  builder  a  lien  upon  the  land,  under 
the  statute.  The  wife  of  the  mortgagor  joined  In  the  mortgage,  and  the 
mortgagee  had  no  notice  of  the  contract  above  mentioned.  The  builder 
caused  the  property  to  be  sold  under  the  lien,  and  an  assignee  of  the  mort- 
gage bought  his  interest.  The  mortgagor  having  died,  his  widow  brings  a 
bill  in  equity  against  the  assignee  to  redeem.  Held,  she  might  redeem  with- 
out paying  any  part  of  the  sum  thus  paid  by  the  assignee.  Van  Vronkcr  v. 
Eastman,  7  Met.  157. 

A  mortgasor  devised  the  estate  to  his  son.     The  son  died,  leaving  a  widow. 


444  THE   LAW    OF   MORTCxAGES.  [CH.  XV. 

which  her  husband  died  seised,  and  her  right  to  dower  is  not 
disputed  by  the  heir  or  devisees,  it  may  be  assigned  to  her  by 


The  executor  of  the  father  sold  the  estate,  became  himself  tha  purchaser, 
and  redeemed  the  mortgage,  paying  one  half  of  it  with  assets  in  his  hands 
as  executor,  as  ordered  by  the  will,  and  the  rest  with  his  own  funds. 
The  widow  and  heirs  of  the  son  affirmed  the  sale.  Held,  the  widow  should 
have,  as  dower,  the  interest  for  her  life  of  one  third  of  the  price  of  the  equity, 
and  one  third  of  the  sum  paid  from  the  estate  by  the  executor  to  red'eem. 
Jennison  v.  Hapgood,  14  Pick.  345. 

The  purchaser  of  an  equity  of  redemption,  from  the  mortgagor's  adminis- 
trator, "ave  a  bond  to  the  latter  to  pay  the  mortgage  debt,  and  afterwards 
paid  it,  taking  an  assignment  of  the  mortgage.  The  widow  of  the  mortgagor 
brings  a  bill  in  equity  against  the  assignee  to  redeem.  Held,  the  bond  could 
not  be  set  up  by  the  plaintilT,  she  not  being  a  party  to  it,  either  by  way  of 
estoppel  or  otherwise.  It  was  a  personal  obligation  of  indemnity,  to  secure 
the  personal  estate  against  any  claim  for  the  mortgage  debt.  Gibson  v.  Cre- 
hore,  5  Pick.  146. 

Where  one  of  several  mortgagees  was  to  have  possession  of  part  of  the  prem- 
ises for  life,  and  a  pecuniai-y  provision,  under  certain  circumstances,  not 
exceeding  a  particular  sum  ;  held,  a  tender  by  the  widow  to  an  assignee  of 
the  husband  of  a  sum  of  money,  as  an  indemnity  against  such  provision,  did 
not  discharge  the  mortgage,  or  give  her  a  claim  to  dower.  The  husband  or 
his  assi'i'nee  would  be  entitled  to  possession,  and  the  Avidow  to  dower,  until  a 
claim  made  for  such  provision.     Bullard  i'.  Bowers,  10  N.  H.  500. 

The  administrator  of  a  mortgagee,  having  entered  for  breach  of  condition, 
allowed  the  mortgagor's  widow  to  remain  in  possession  of  part  of  the  land. 
Held,  he  should  account  to  a  purchaser  of  the  equity  of  redemption  for  the 
profits  of  the  whole  farm,  and  after  the  lapse  of  a  reasonable  time  to  eject 
her  by  legal  process.     Thayer  v.  Richards,  19  Pick.  398. 

A  husband,  who,  before  his  marriage,  had  mortgaged  land  to  a  guardian, 
for  the  benefit  of  his  wards,  afterwards  became  insolvent;  and  his  assignee 
sold  the  land,  the  purchaser  made  a  mortgage  to  the  wards  to  secure  a  like 
amount,  and  the  guardian  discharged  his  mortgage  upon  the  record,  pur- 
suant to  a  verbal  agreement  that  the  mortgage  to  the  wards  should  be  sub- 
stituted for  that  to  the  guardian ;  the  purchaser  afterwards  sold  the  land, 
and  his  grantee  redeemed  the  mortgage,  before  the  husband's  death.  Held, 
that,  under  Rev.  Sts.  c.  60,  §  2,  the  widow  was  entitled  to  dower  in  the 
equity  of  redemption  only.     Newton  v.  Cook,  4  Gray,  46. 

In  New  Hampshire,  a  widow  is  entitled  to  dower  in  an  equity  of  redemp- 
tion, against  all  persons  except  the  mortgagee  and  persons  claiming  under 
him.     Hastings  v.  Stevens,  9  Fost.  564.     As  against  the  mortgagee,  she  can- 


CH.   XV.]  EQUITY    OF   REDEMPTION.  44,-, 

the  Probate  Court.  Under  this  statute  it  has  been  held, 
that,  where  a  mortgagor  is  in  possession  at.  his  dcatli,  In' 
is  sufficiently  seised,  to  entitle  his  widow  to  an  assign- 
ment  of  dower,  upon  petition  to  the  Probate  Court.'  In 
this  case,  a  widow  petitioned  the  Probate  Court  for  an 
assignment  of  dower  in  real  estate  of  the  husbajid.  It  ap* 
peared  that  he  had  conveyed  the  estate  in  fee  and  in  mort- 
gage,  she  joining  in  the  deed  and  relinquishing  her  dower. 
Also,  that  the  administrator  was  the  mortgagee,  and  did  not 

1  Henry's  case,  4  Cusli.  257. 


not  be  endowed,  except  upon  payment  of  the  mortgage.  As  against  one 
having  an  interest  to  redeem,  who  in  fact  redeems,  only  upon  contribution 
of  a  fair  proportion  of  the  incumbrance,  according  to  the  value  of  her  dower 
interest.  Otherwise,  if  an  administrator,  with  the  assets,  pay  off  and  dis- 
charge the  mortgage.  Where  an  administi-ator  sold  a  mortgaged  estate  at 
auction,  and  conveyed  it  with  a  warranty  against  all  claims,  by,  from,  or 
under  the  intestate  or  himself, '' but  against  no  other  persons ;"  and  after- 
wards paid  the  mortgage ;  and  the  mortgagee  executed  a  receipt  upon  the 
mortgage  for  the  amount  due  upon  it,  "in  full  discharge  thereof:"  held,  a 
discharge  of  the  mortgage,  which  let  the  widow  in  to  her  dower.  So,  not- 
withstanding a  jiublic  declaration,  at  the  sale  by  the  administrator,  that  he 
had  paid  a  part  of  the  debt  to  the  mortgagee,  and  that  he  would  "  pay,"  or 
"  lift,"  or  "  raise,"  the  mortgage  for  the  benefit  of  the  purchaser.  Hastings 
V.  Stevens,  9  Fost.  564.  Where  a  husband  and  wife  executed  a  mortgage, 
to  secure  a  note,  and  the  husband  died,  the  note  still  remaining  unpaid, 
and  one  A.  purchased  the  note  and  mortgage,  and  took  an  assignment  of 
them,  and  afterwards  purchased  the  equity  of  redemption,  at  a  public  sale 
of  it  by  the  administrator  ;  held,  upon  payment  of  her  proportion  of  the  debt, 
the  widow  was  entitled  to  be  endowed.     Woods  v.  Wallace,  10  Fost.  384. 

If  the  widow  of  the  mortgagor,  while  in  possession  of  the  mortgaged  prem- 
ises, before  dower  is  assigned  to  her,  conveys  by  deed  to  the  mortgagee ;  if 
her  deed  is  effective  for  any  purpose  as  against  the  heirs,  her  alienee  cer- 
tainly does  not  thereby  acquire  more  than  the  right  to  retain  one  tiiird  of 
the  rents  «id  profits.     Hunt  v.  Acre,  28  Ala.  580. 

A.  and  B.  were  tenants  in  common  of  mortgaged  land.  A.  purchased  B.'s 
share  and  paid'  off  the  mortgage.  B.  having  died,  held,  B.'s  widow  was 
entitled  to  dower  in  his  half  of  the  land,  and  might  recover  it  by  an  action 
at  law,  deducting  half  the  amount  of  the  mortgage  at  the  time  of  the  dis- 
charge.    Pynchon  v.  Laster,  6  Gray,  314. 

VOL.   I.  38 


446  THE   LAW   OF   MORTGAGES.  [CH.  XV. 

object  to  an  assignment  of  dower  Jn  the  whole  estate,  the 
residue  being  of  sufficient  value  to  pay  the  mortgage  debt ; 
and  that  no  person  objected,  as  heir  or  devisee,  to  the  assign- 
ment. Held,  the  petition  should  be  granted.  The  Court 
say  :  —  "  The  appellant  is  entitled  to  dower,  as  against  every 
person  except  the  mortgagee  and  those  claiming  under  him. 
It  is  so  expressly  provided  by  the  Rev.  Sts.  c.  60,  §  2,  and 
she  may  at  her  election  have  her  dower  assigned  to  her  ac- 
cording to  the  value  of  the  estate,  after  deducting  the  mort- 
gage debt ;  so  it  may  be  assigned  to  her  in  the  whole  estate 
'  provided  that  if  the  heir  or  other  person  claiming  under  the 
husband  shall  redeem  the  mortgage,  she  shall  repay  such 
part  of  the  money  paid  by  him,  as  shall  be  equal  to  the  pro- 
portion, which  her  interest  in  the  mortgaged  premises  bears 
to  the  whole  value  thereof.'  Whether  she  would  be  liable  to 
pay  such  proportion,  should  the  mortgage  be  foreclosed,  may 
be  a  question,  which,  however,  is  not  raised  on  this  appeal ; 
whatever  may  be  the  appellant's  future  liabilities,  she  has  the 
right  to  have  her  dower  assigned  to  her  in  the  whole  estate, 
the  mortgagee  not  objecting.  And  this  assignment  the  Judge 
of  Probate  had  a  right  to  make.  By  the  third  section  of  the 
same  chapter  it  is  enacted,  that '  when  a  widow  is  entitled  to 
dower,  in  lands  of  which  her  husband  died  seised,  and  her 
right  of  dower  is  not  disputed  by  the  heirs  or  devisees,  it 
may  be  assigned  to  her,  in  whatever  counties  the  lands  may 
lie,  by  the  Judge  of  Probate  for  the  county  in  which  the 
estate  of  the  husband  is  settled.'  In  the  present  case,  the 
appellant's  right  to  dower  was  disputed  by  no  "one  ;  and  her 
husband  died  seised  of  the  estate  in  which  dower  is  claimed, 
notwithstanding  the  mortgage.  The  title  of  a  mortgagor  of 
real  estate  is  peculiar,  for  although  by  the  mortgage  deed  a 
conditional  title  to  the  whole  estate  passes,  and,  as  between 
the  mortgagor  and  mortgagee,  the  latter  becomes  seised  of 
the  legal  estate,  yet,  as  the  mortgage  is  intended  only  as 
security  for  a  debt,  the  mortgage,  as  between  the  mortgagor 
and  all  other  persons,  is  considered  only  as  a  pledge  and  an 
incumbrance,  the  mortgagor  still  remaining  the  owner  of  the 


CH.  XV.]  EQUITY   OF   REDEMPTION.  -1  17 

estate.  Therefore,  the  husband  did  die  seised  of  the  mort- 
gaged premises."  (b) 

^[h)  Somewhat  analogous  to  dower  is  the  wife's  right  of  homestead,  now 
provided  by  statute  in  many  of  the  States.  Upon  this  subject  it  is  held,  tliat, 
where  the  husband  mortgages  property  occupied  by  himself  and  his  wife  as 
a  homestead,  and  previously  conveyed  in  trust  for  her  ;  she  has  an  crpiitabio 
interest,  which  entitles  her  to  redeem.  Whitcomb  v.  Sutherland,  18  111.  578. 
In  California,  a  suit  to  set  up  and  foreclose  a  mortgage  on  the  homesteail  is 
not  a  "  claim  "  against  the  estate  of  the  mortgagor,  as  in  no  event  does  tiiat 
estate  hold  the  homestead,  and  therefore  the  suit  may  be  brought  in  the  Dis- 
trict Court,  and  the  administrator  may  be  joined,  to  litigate  the  amount  of  tho 
indebtedness.     Carr  v.  Caldwell,  10  Cal.  380. 


448 


THE   LAW    OF   MORTGAGES. 


[CH.  XVI. 


CHAPTER  XVI. 

EQUITY  OF  REDEMPTION.  TERMS  OF  REDEMPTION.  ACCOUNT  OF 
A  MORTGAGEE  IN  POSSESSION.  HIS  LIABILITY  FOR  RENTS, 
AND    CLAIM    FOR    EXPENDITURES. 


1.  The  mortgagee  is  liable  to  ac- 
count, as  a  steward  or  bailiff ;  extent  of 
his  liabiHty. 

12.  Mode  of  corapuling  interest ; 
whether  the  mortgagee  is  chargeable 
witli  interest ;  annual  rests. 

18.  What  provisions  in  a  mortgage 
will  bind  the  party  to  pay  interest. 

20.  Interest,  in  case  of  a  particular 
tenant  and  reversioner. 

22.  For  what  repairs  and  other  ex- 


penditures the  mortgagee  shall  be  al- 
lowed. 

34.  Sale  of  a  part  of  the  mortgaged 
property ;  proceeds  to  be  accounted 
for. 

35.  Accounting  for  rents,  &c.,  to 
subsequent  mortgagees,  creditors,  as- 
signees, &c. 

45.  Receivers. 

52.  Parties  in  case  of  a  decree  to  ac- 
count for  rents,  &c. 


1.  With  regard  to  the  terms.,  upon  which  redemption  of  a 
mortgage  may  be  had,  or  the  mutual  settlement  and  adjust- 
ment between  the  mortgagee  and  mortgagor  ;  it  is  held,  that 
a  mortgagee  in  possession  is  the  steward  or  bailiff  of  the 
mortgagor,  without  a  salary,^  and,  as  such,  accountable  to 
him  or  his  assignee,^  or  a  subsequent  mortgagee,^  [a)  for  the 
profits.*     And,  if  he  refuse  to  account,  he  is  liable  to  "  every 


1  Chohuondeley  v.  Chnton,  2  Jac  & 
W.  179. 
^  Euckman  v.  Astor,  9  Paige,  517. 


^  Moore   r.   Degraw,  1   Ilalst.   Ch. 
346. 
•*  Anthony  v.  Rogers,  20  Mis.  381. 


(a)  It  is  held,  that  one  in  possession  of  mortgaged  premises,  under  a  title 
subject  to  the  mortgage,  must  account  to  the  mortgagee  for  the  rents  and 
profits.  Latimer  v.  Moore,  4  McL.  110.  A  decree  of  foreclosure  was  opened 
after  enrolment,  on  application  and  motion  of  a  subsequent  mortgagee,  in 
order  to  charge  the  plaintiff  with  a  reasonable  rent,  the  prior  mortgage 
having  been  assigned  to  the  plaintiff  when  he  was  tenant  under  the  mort- 
gagor, and  he  having  filed  the  bill  to  foreclose  the  prior  mortgage,  and  in 
the  mean  time  retained  possession.     Moore  v.  Degraw,  1  Halst.  Ch.  346. 

A  mortgagee  may  be  in  possession  as  ageiit  of  the  mortgagor  ;  and  must 
then  account,  as  in  other  cases.     Brock  v.  Lewis,  7  Rich.  Eq.  77. 


•  CH.  XVI.]      EQUITY    OF   REDEMPTION.— TERMS   OF,  ETC.  449 

presumption  against  him  that  the  evidence  will  warrant." » 
The  rents  and  profits  are  said  to  be  in  equity  incidciitsrfe 
jure  to  the  ownership  of  the  equity  of  redemption.^  Parol 
evidence  is  not  admissible,  that  the  mortgagee  was  not  to 
account.3  And  it  is  said,  "  A  mortgagee,  entering  into  pes- 
session,  and  taking  the  profits,  must  be  deemed  to  take  them 
in  his  character  as  mortgagee.  If  in  any  sense  he  can  be  said 
to  take  them  as  agent,  it  must  be  as  agent-mortgagee.  Be- 
fore forfeiture,  he  may  properly  be  deemed  in  some  sort  an 
agent,  {b)  But  after  forfeiture  his  possession  is  under  his 
title  ;  and  if  he  then  takes  the  profits,  he  must  be  deemed 
to  take  them  as  mortgagee,  and  not  otherwise,  unless  there 
be  the  most  plenary  and  irresistible  proof,  that  he  has  dis- 
claimed that  character,  and  taken  them  to  accouht,  and  has 
accounted  therefor,  as  a  stranger  agent."* 

2.  In  general,  however,  the  mortgagee  is  liable  only  for  the 
actual  receipts,  if  they  can  be  ascertained,  unless  he  is  guilty 
of  fraud,  of  some  gross  wrong  or  neglect,  or  wilful  default,  as 
by  the  rejection  of  a  good  tenant  or  the  admission  of  an  in- 
sufficient or  notoriously  insolvent  one.^  (See  §8.)  In  which 
case  he  will  be  liable,  deducting  the  time  requisite  for  expel- 

1  Reitenbaugh  v.  Ludwick,  31  Penn.  ■*  Dexter  v.  Arnold,   1   Sumn.  116, 
131.  117. 

2  Gordon   v.   Lewis,  2  Sumn.    143.  ^  See  Beare  v.  Prior,  6  Beav.  183; 
See  ch.  22,  §  48,  et  seq.  Hogan  v.   Stone,  1  Ala.  N.    S.   400 ; 

'^  Davis  V.  Lagarter,  20  Ala.  561 ;    Benham  v.  Rovve,  2  Cal.  387. 
Saunders  v.  Prost,  5  Pick.  259. 


(Jb)  The  mortgagee  must  account  for  the  rents  and  profits,  wlicre  it  was 
agreed  that  he  should  receive  them  till  the  debt  became  due,  and  then  rccon- 
vey.  Cross  v.  Hepner,  7  Ind.  359.  Entry  by  a  mortgagee,  before  hrcach  of 
condition,  is  regarded  as  a  harsh  proceeding,  contrary  to  the  intention  oftho 
parties,  and  unwarranted  by  any  default  of  the  mortgagor ;  and  therefore  the 
mortgagee  will  be  held  to  a  very  strict  account  of  the  rents  and  profits,  lie 
cannot,  after  discharge  of  the  mortgage,  recover  from  the  mortgagor  for 
repairs  not  necessary  to  preserve  the  estate.  Ruby  v.  Abyssinian,  &c.,  3 
Shepl.  306.  See  M'Carron  v.  Cassidy,  18  Ark.  34.  In  Maine  and  Massa- 
chusetts, the  mortgagee,  in  such  case,  shall  account  for  the  clear  rents  and 
profits.  Mass.  Rev.  Sts.  635  ;  Maine  Rev.  Sts.  553. 
38* 


450  THE   LAW    OF   MORTGAGES.  [CH.  XVI. 

ling  such  tenant  and  obtaining  another.^  Not  for  the  rent  of 
an  absconding  tenant,  unless  guilty  of  negligence.^  His  lia- 
bility is  that  of  a  provident  owner.^  If  the  amount  of  the 
rents  received  cannot  be  fixed,  he  is  liable  for  a  fair  occupa- 
tion rent^  The  mortgagee  of  a  farm  has  no  right  to  let  it 
lie  untilled,  becaus^e  the  house  on  it,  or  the  house  and  farm 
together,  were  not  rented  ;  nor  to  let  it  go  to  waste.  But 
he  is  bound  to  keep  it  in  good  ordinary  repair,  and,  in  case 
of  a  farm,  for  good  ordinary  husbandry.^ 

3.  The  rule  has  also  been  stated  in  this  form.  If  the  mort- 
gagee himself  occupies,  he  is  accountable  for  the  utmost 
value  (c)  the  land  would  have  produced  with  ordinary  care, 
exclusive  of  taxes  and  repairs  ;  but,  if  he  enters  into  receipt 
of  the  rents,  only  after  the  rate  of  the  rent  reserved.^  If  the 
mortgagee  occupy  himself,  he  cannot  be  allowed,  for  his  care 
of  the  estate,  a  commission  on  the  rent  for  which  he  is  re- 
quired to  account.'  So  it  has  been  held,  that  no  allowance 
is  to  be  made  to  a  mortgagee  for  his  management  of  the 
estate,  beyond  legal  interest,  notwithstanding  an  agreement 
for  that  purpose.^  So,  where  a  mortgage  provided,  that,  in 
order  to  secure  the  regular  payment  of  the  debt,  the  mortga- 
gee should  be  in  receipt  of  the  rents,  and  have,  as  receiver, 
£60  a  year  for  his  trouble,  and,  after  retaining  this  amount 

1  Miller  v.  Lincoln,  6  Gray,  556.  ^  2  Grcenl.  Cruise,  113,  114,  n.    See 

2  Saunders  v.  Frost,  5  Pick.  2-59.  Holabird  v.  Burr,  17  Conn.  556:  Kel- 

3  Shaefler  v.  Chambers,  2  Halst.  Ch.  logg  v.  Rockwell,  19  Ibid.  446. 
548;  M'Connell  v.  Holobush,  11  Ibid.  '  Eaton  y.-Siraonds,  14  Pick.  98. 
61.  ^  Breckenridge  v.  Brooks,  2  A.  K. 

*  Gordon   v.   Lewis,  2   Sumu.    144.  Marsh.  335;  French  v.  Baron,  2  Atk. 

See  Trulock  v.  Robey,  15  Sim.  265.  120  ;  Bonithon  i-.  Hockmore,  1  Vera. 

5  ShaeflFer  v.  Chambers,  2  Halst.  Ch.  316  ;  ace.  Clark  r.  Bobbins,  6  Dana, 

.548.  350  ;  Benhara  v.  Rowe,  2  Cal.  387. 


(c)  Elsewhere  termed  a  rea>"maUe  rent.  Moore  i'.  Degraw,  1  Halst.  Ch. 
346.  A  mortgagee  of  slaves  in  possession  is  bound  to  use  reasonable  dili- 
gence in  keeping  them  usefully  employed,  so  as  not  only  to  pay  their  neces- 
sary expenses,  but  also  obtain  reasonable  compensation  for  their  labor.  And 
this,  though  he  treated  them  humanely,  provided  for  their  wants,  and  made 
them  comfortable,  or  managed  them  as  the  mortgagor  had  done.  Bennett 
V.  Butterworth.  12  How.  367. 


CH.  X7I.]      EQUITY   OF   REDEMPTION.  —  TERMS    OF,  fiTC.  ^;-,l 

with  the  interest,  should  pay  the  balance  to  ihe  inort-a.M.r  • 
it  was  held,  that  he  was  liable  to  a  qui  tarn  action  lor  usury." 
4.  But,  on  the  other  hand,  it  is  said,  the  rnort,i,^:,tre,.  ..lay 
charge  for  the  collection  of  rents  ;  or  may  be  allowed  a  com- 
mission for  his  services  in  receiving  the  rents.     So  he  may 
be  allowed  the  cost  of  obtaining  speedy  possession  of  the 
estate.2     So,  also,  he  may  agree  with  the  mortgagor  for  a 
receiver,  to  be   paid  by  the  latter.     In  Massachusetts,  the 
usual   amount  is  five  per  cent.     But  there  is  no  fixed  rule 
upon  the  subject,  and  he  is  not  restricted  to  this  percentage- 
And  while  it  is  said  to  be  a  general  rule,  founded  on  the 
jealousy  which  courts    entertain  at  the  interference  of  the 
mortgagee  with  the  estate,  that,  if  he  be  in  possession,  and 
receive  the  rents,  he  shall  be  allowed  nothing  for  his  trouble ; 
yet,  if  the  estate  lie  at  such  a  distance  from  the  place  of  his 
residence,  as  that  he  must  necessarily  have  employed  a  bailiff, 
if  the  property  had  been  his  own,  he  will  be  allowed  such 
sums  as  he  actually  paid  to  a  bailiff'.*     Also,  that,  in  order 
to  redeem,  the  mortgagor  v^ill  be  required  to  pay  all  that  is 
equitably  due  as  incident  to  the  debt;^  or  all  debts  forming  a 
charge  upon  the  land  ;  ^  but  the  mortgagee  cannot  make  a  ' 
profit  out  of  the  mortgage." 

5.  A  mortgagee  is  not  bound  to  pay  over  rents,  &c.,  while 
any  par^f  the  debt,  charged  upon  the  portion  of  the  estate 
belonging  to  the  party  who  claims  them,  remains  unpaid.^ 
But  he  must  apply  the  rents  received  by  him  to  the  mortgage 
debt,  principal  as  well  as  interest,  not  to  other  claims. 
They  are  to  be  applied,  as  they  accrue,  to  keep  down  the 
interest.^  And  a  mortgagee  must  account,  as  such,  for  rents 
received  by  him,  although  an  agreement  was  made  between 
him  and  the  mortgagor  to  apply  them  to   an  independent 

1  Scott  V.  Brest,  2  T.  R.  238.  257.     See  Tennent  v.  Dcwccs,  7  Barr, 

2  Waterman  v.  Curtis,  26  Conn.  241.     305. 

'^  Coote,  404 ;  Adams  y.  Brown,  Law        »  Tharp  v.    Feltz,   6    B.   Mon.    6; 

Eep.  May,  1851,  p.  38 :  7  Cush.  220 ;  Coote,  458. 
26  Conn.  241.  '  Walton    v.   Withington,   9    Miss. 

*  1  Pow.  295,  b.  n.,  Gilbert  v.  Dyne-  549. 
ley,  3  M.  &  G  12  ^  Bell  v.  Mayor,  &c.,  10  Paipc,  49. 

5  Bank,  &c.  v.  Rose,  1  Strobb.  Eq.        ^  AValton  v.  Witbingtou,  9  Jliss.  519. 


452  THE    LAW    OF    MORTGAGES.  [CH.    XVI. 

claim  ;  if  after  such  agreement  the  claim  became  invalid  as 
a  lien  upon  the  estate.  Thus  a  mortgagor  was  indebted  to 
the  mortgagee  in  a  building  contract,  applying  to  the  mort- 
gaged property,  which,  though  duly  recorded,  had  not  been 
enforced,  according  to  law,  by  a  suit  within  six  months. 
Tlie  mortofao^ee  entered  for  breach  of  condition,  and  it  was 
thereupon  verbally  agreed  between  the  parties,  that  he  should 
let  the  estate,  and  apply  the  rents  to  the  building  contract. 
Before  any  rent  had  been  paid  or  become  due,  the  mortgagor 
filed  a  petition  under  the  insolvent  law,  and  subsequently 
rents  were  paid  to  the  mortgagee.  Upon  a  bill  in  equity, 
filed  by  the  assignee  of  the  mortgagor,  against  a  purchaser 
of  the  estate  from  such  assignee,  and  the  mortgagee  ;  held, 
the  rents  received  by  the  mortgagee  must  be  considered  as 
received  by  him  in  that  capacity,  and  as  such  accounted  for 
by  him  ;  the  lien  of  the  contract  having  come  to  an  end,  by 
the  failure  to  commence  a  suit  thereupon,  as  provided  by 
law.  In  regard  to  the  agreement  for  applying  the  rents  to 
such  contract,  the  Court  say  :  —  "  The  agreement  to  appro- 
priate the  rents,  to  be  received  by  the  defendants,  towards 
their  building  contract,  could  not  by  its  own  force  bind  the 
estate.  So  long  as  he  had  a  disposing  power,  so  long  as  he 
himself  had  a  power  to  receive  the  rents,  that  is,  before  his 
insolvency,  if  the  defendants  had  received  any  suclLrent  and 
appropriated  it,  it  would  have  enured  by  way  of  payment, 
and  been  available.  But  no  rents  liad  been  received  by  them 
under  the  agreement.  When  the  debtor  became  insolvent, 
legal  proceedings  were  instituted,  under  which  all  his  prop- 
erty and  rights  to  property  passed  to  his  assignee  for  bis  gen- 
eral creditors.  It  vested  in  his  assignee  his  right  in  equity 
of  redeeming  the  house,  the  reversion,  if  it  was  then  let,  and 
all  the  rents  which  accrued  and  became  payable  ;  but  as  no 
rent  was  then  payable,  none  could  be  appropriated  under  the 
agreement,  because  the  disposing  power  of  the  debtor  over 
it  was  then  gone."  ^     So,  after  a  mortgage  of  tan  vats,  an 

1  Ililliard  I?.  Allen,  4  Cusli.  532,  537. 


CH.  XVI.]     EQUITY   OF   REDEMPTION.  —  TERMS   OF,  ETC.  453 

agreement  was  made  between  the  parties  for  laniiiii"-,  the 
mortgagor  to  furnish  the  vats.  He  absconded,  leaving  tiie 
mortgagee  to  finish  the  tanning  of  certain  leather,  and  the 
latter  occupied  till  the  tanning  was  completed;  a  part  of  the 
time  under  an  execution  founded  upon  the  mortgage.  Held, 
while  the  mortgagee  occupied  under  the  contract,  he  might 
apply  the  rents  and  profits  to  that  account ;  but,  after  taking 
possession  under  the  execution,  he  must  account  for  them  as 
mortgagee.^ 

6.  The  amount  of  rents  received  by  the  mortgagee  is  to  be 
made  up  to  the  time  of  the  master's  report.^  And,  upon  a 
decree  of  strict,  foreclosure,  where  the  mortgagee  is  in  pos- 
session, if  the  premises  are  redeemed  within  the  time  allowed 
by  the  decree,  he  must  account  for  the  rents  and  profits  sub- 
sequent to  the  decree.^  (d)  But  a  mortgagee  in  possession, 
having  obtained  a  decree  of  foreclosure,  is  not  liable  at  law 
to  the  mortgagor  for  the  rents  and  profits  after  such  decree ; 
nor  for  those  prior  to  the  decree,  unless  allowed  by  the  mas- 
ter on  taking  the  accounts.* 

7.  If  the  assignee  of  a  mortgage,  contemporaneous  with 
that  given  to  the  plaintiff,  enter  and  take  the  profits,  he  is 
liable  for  them  as  joint  owner.  And  his  intention,  or  agree- 
ment with  the  mortgagor,  is  immaterial.^ 

8.  A  mortgagee  in  possession,  being  regarded  as  a  trustee, 
and  accountable,  as  such,  for  the  rents  and  profits,  will  be 
held  responsible  for  them  in  case  of  his  assigning  the  estate 

1  Wood  V.  Felton,-9  Pick.  171.  *  Chapman  v.  Sniitli,  0  Venn._lo3. 

2  Holabird  v.  Burr,  17  Conn.  556.  ^  Holabird  v.  Burr,  17  Conn.  006. 

3  Ruckman  v.  Astor,  9  Paige,  518. 


(d)  In  Ruckman  v.  Astor,  9  Paige,  517,  it  was  held  that  a  purcha.scr  of 
mortgaged  premises,  redeemed  within  the  time  allowed  by  the  Act  of  1837, 
concerning  the  sale  of  real  estate  under  mortgage,  cannot  retain  the  rents 
and  profits  accruing  between  the  sale  and  the  time  of  redemption,  in  addition 
to  the  amount  of  his  bid  and  ten  per  cent,  interest  thereon,  although  the 
owner  of  the  equity  neglected  to  give  the  requisite  security,  to  prevent  the 
purchaser  from  taking  possession  immediately  after  confirmation  of  the  report 
of  the  sale. 


454  THE    LAW    OF   MORTGAGES.  [cil.  XVI. 

to  an  insolvent  person,  without  the  mortgagor's  consent,  this 
being  a  breach  of  trust.^     (See  §  2.) 

9.  Where  a  mortgagor  sold  the  estate,  the  purchaser  as- 
suming the  mortgage,  and  giving  his  own  notes  with  a  surety, 
as  collateral  to  the  mortgage  debt ;  and  suit  was  brought 
against  the  surety,  and,  his  estate  being  small,  the  judgment 
compromised,  the  purchaser  not  objecting :  held,  the  mort- 
gagee was  liable  to  account  only  for  so  much  as  he  received, 
but  the  costs  of  suit  were  not  deducted.^ 

10.  Where,  in  a  bill  for  redemption,  the  plaintiff  claimed  at 
the  hearing  some  deduction  from  the  debt,  but  alleged  no 
receipt,  and  prayed  for  no  account  of  rents,  but  only  averred 
that  the  defendant  threatened  to  receive  them,  and  turned 
his  cattle  on  the  land ;  held,  no  deduction  should  be  made 
on  this  account.^ 

11.  Where  a  mortgagee,  after  entering  for  foreclosure,  re- 
ceives payment  of  the  mortgage  debt,  without  allowing  any- 
thing for  the  use  of  the  property,  the  mortgagor  may  main- 
tain an  action  for  money  had  and  received  against  him,  but 
not  an  action  for  use  and  occupation.'* 

12.  According  to  the  general  rule,  that  the  mortgagee  shall 
get  nothing  beyond  the  principal  and  interest  of  his  debt,  it 
seems  he  is  accountable  for  interest  on  the  surplus  rents  over* 
the  interest  on  the  mortgage.  It  is  also  said,  that  generally, 
where  the  relation  of  mortgagor  and  mortgagee  is  undisputed, 
if  the  latter  receive  the  rents  after  the  debt  is  satisfied,  and 
retain  them  to  his  own  use,  he  is  liable  for  interest.  But  if 
he  retained  them  under  a  mistake,  supposing  the  mortgagor's 
rights  to  be  extinguished,  he  would  not  be  liable  for  interest, 
till  after  notice  of  the  adverse  claim.^ 

13.  An  agreement  was  made  between  mortgagor  and  mort- 
gagee and  a  builder,  that  the  builder  should  rebuild  the 
premises,  and  receive  a  lease  at  a  nominal  rent,  he  granting 

1  Coote,   427,   428  ;   Xeale   i-.  Hag-        ^  Gordon  v.  Lewis,  2  Sumn.  143, 144 ; 

thorp,  3  Bland,  oUO.  Gibson  v.  Creliore,  o  Pick.  14G  ;  Powell 

-  Johnson  v.  Kice,  8  Greenl.  157.  v.  Williams,  14  Ala.  470.    See  .Jenkins 

"  Gree  i-.  Lord,  25  Verm.  498.  v.  Eldredire,  3  Storv,  325  ;   llotjau  v. 

*  Wood  V.  Felton,  9  Pick.  171.  Stone,  1  Ala.  N.  S.  490. 


CH.  XVI.]      EQUITY    OF   JlEDEMPTIOX.  —  TKllMS   OF,   ETC.  4': 

an  underlease  to  the  mortgagee  at  a  rent  of  £2rA),  :„ul  (,„ 
payment  of  X1,000.  The  buildings  were  completed,'ana  the 
mortgagee  took  possession,  but  neither  the  rent  nor  1  he  £1,000 
was  paid,  but  after  some  years  the  builder  agreed  to  purel'iasc 
the  mortgagee's  lien  and  balance  accounts.  Held,  the  builder 
should  have  interest  upon  the  rents,  but  the  account  of  prin- 
cipal and  interest  should  not  be  carried  beyond  the  dale  of 
the  decree  ;  and  that  interest  should  not  be  allowed  upon  the 
rents,  as  against  the  mortgagor.^ 

14.  Where  a  purchaser  of  the  land  mortgaged  is  made 
defendant  in  a  suit  on  the  mortgage ;  in  order  to  redeem,  he 
must  pay  the  sum  due  in  equity,  being  the  principal  and 
interest  of  the  debt,  deducting  any  payments  and  any  sums 
received  as  rents  and  profits.  But  if  he  claims  that  the  sum 
due  is  uncertain  and  unliquidated,  and  that  he  offered  to  the 
plaintiff  a  certain  sum,  with  condition,  that,  if  he  received  it, 
it  must  be  in  full  satisfaction,  and  that  the  money  was 
accepted ;  in  order  to  show  that  the  sum  was  thus  unliqui- 
dated, he  may  prove  the  plaintiff  to  have  been  in  possession, 
and  liable  to  account  for  the  rents  and  profits.^ 

15.  Compound  interest  is  not  to  be  allowed  between  mort- 
gagee and  mortgagor.^  But  it  is  held,  that,  if  the  mortgagor 
have  allowed  compound  interest,  he  cannot  revoke  such 
allowance.* 

16.  With  regard  to  the  mode  of  casting  interest  between 
mortgagor  and  mortgagee,  it  is  said  that  annual  rests  are  not 
to  be  made  by  the  master,  to  whom  a  mortgagee's  account 
is  referred,  unless  he  is  specifically  so  ordered  by  the  decree. 
The  general  rule  is,  to  charge  the  mortgagee  with  interest : 
1.  Where  the  mortgage  is  satisfied,  and  a  considerable  bal- 
ance remains  in  his  hands  ;  2.  Where  he  refuses  to  aceount ; 
3.  Where  he  has  notice  of  a  subsequent  mortgage,  to  pay 
which  he  is  requested  to  apply  the  balance  in  his  hands.  In 
other  cases  the  rule  is  —  to  cast  the  debt  and  interest,  on  the 

^  Page  V.  Broom,  4  Russ.  6,  224.  513.     See  Duiislieo   v.   rarmelce,   I'J 

-  MeDaniels  v.  Lapham,  21  Yerm.  Venn.  172. 

222.  *  Booker   v.    Gregory,   7   B.   Moii. 

'^  Kittredge  v.  McLaughlin,  38  Maine,  43'J. 


456  THE   LAW    OF   MORTGAGES.  [CH.  XVL 

one  hand,  and  the  total  amount  of  rents,  without  interest,  on 
the  other  hand,  and  deduct  the  one  from  the  other.^  So 
Judge  Story  says:^  —  "  Courts  of  equity  will  not  ordinarily 
require  annual  rests  to  be  made  in  settling  the  accounts ;  as, 
for  example,  they  will  not  require  annual  rests  to  be  made, 
where  the  interest  of  the  mortgage  is  in  arrears  at  the  time 
when  the  mortgagee  takes  possession,  even  although  the 
rents  and  profits  may  exceed  the  annual  interest,  nor  until 
the  principal  mortgage  debt  is  entirely  paid  off.  But  where 
special  circumstances  exist,  as  for  example  where  no  arrears 
of  interest  are  due  at  the  time  when  the  mortgagee  enters 
into  possession,  or  any  agreement  between  the  parties,  the 
interest  in  arrears  is  converted  into  principal,  there,  and  in 
such  cases,  annual  rests  shall  be  made."  So  where  a  mort- 
gagee, having  been  some  time  in  possession  and  occupation 
of  the  estate,  sold  and  conveyed  it,  and  the  purchaser  entered 
and  took  possession  ;  held,  in  stating  an  account  upon  a  bill 
to  redeem,  it  was  incorrect  to  make  a  rest  in  the  computation 
of  interest  at  the  time  of  such  transfer,  and  add  the  interest 
then  due  to  the  principal.^  But  where  interest  was  payable 
semi-annually,  interest  with  semi-annual  rests  was  computed 
on  the  rents  and  profits  received  by  the  mortgagee."*  So, 
the  interest  upon  a  mortgage  having  fallen  in  arrear,  and 
the  mortgagee  in  his  account  of  arrears  having  made  pe- 
riodical rests,  on  \vhich  interest  was  reckoned;  a  general 
account  was  made  of  all  arrears,  based  upon  those  rests, 
signed  by  the  mortgagor,  and  confirmed  by  a  trust  deed, 
executed  three  years  afterwards,  for  securing  payment  of 
the  balance  by  a  sale  of  the  property.  Upon  a  bill  in 
equity  filed  by  the  mortgagee,  and  praying  that  the  deed 
might  be  carried  into  execution  ;  it  was  held,  that  the  trans- 
actions above  stated  were  not  usurious,  and  a  decree  was 
made  for  a  sale.^      Alderson,  B.,  remarks:^  —  "What  evi- 

1  2  Greenl.  Cruise,  119,  n. ;  Shaeffer        ^  Boston  Iron  Co.  v.  King,  2  Cush. 
V.  Chambers,  2  Ilalst.  Ch.  548.  400. 

•^  2  Story's  Eq.  1016  a. ;  ace.  Finch         *  Gibson  v.  Crchore,  5  Pick.  146. 
V.    Brown,   3   Beav.  7U  ;    Horlock   v.        ^  Blackburn  v.  Warwick,   2  Y.   & 
Smith,  1  Coil.  287.  Coll.  92. 

«  Ibid.  99. 


CH.  XVI.]      EQUITY    OF    REDEMPTION. TERMS    OF,    ETC.  A'.l 

dence  is  there,  arising  out  of  the  relative  situation  of  (Ik-  pur- 
ties  as  mortgagor  and  mortgagee,  to  induce  the  conchi^ion 
that  there  was  any  opjDression  ?     There  is  not  enough  even 
in  the  original  state  of  the  transactions,  but  more  especially 
when  they  are  found  to  be  based  upon  a  regular  a'rrcenient. 
Then,  is  there  anything  illegal  in  the  agreement  itself?    li  is 
said,  that  if  parties  enter  into  an  original  agreement  by  way 
of  mortgage,   they  cannot  recover  more  than  £5  per  ci'ut. 
beyond  the  principal  money,  and  that  a  stipulation,  that  if 
the  interest  is  not  paid  at  the  time,  the  mortgagor  shall  pay 
interest  upon   it   until  the   arrears  are  paid,  that  is  illegal. 
Now,  in  holding  this  to  be  the  rule,  I  presume  the  courts 
suppose  that  some  advantage  immediately  accrues  to  the 
mortgagee  under  the  deed,  ultra  the  allowance  of  £5  per 
cent.     I  do  not  see  why  such  interest  might  not  be  allowed, 
even  where  the  stipulation  to  pay  is  contained  in  the  original 
deed ;  but  be  that  as  it  may,  there  the  covenant  being  part 
of  the  original  terms  of  the  contract,  is  part  of  the  original 
advantage  accruing  to  the  mortgagee,  and  the  courts  will  not 
sanction  such  a  contract.     So  neither  will  the  courts  allow 
interest  upon  interest,  where  the  party  comes  to  an  account 
with  his  debtor,  which  he  afterwards  seeks  to  enforce  through 
the  medium  of  a  court  of  equity.     In  that  case,  it  is  consid- 
ered, that  where  parties  who  are  entitled  to  the  repayment  of 
a  principal  sum  with  simple  interest,  have  neglected  to  enforce 
payment  of  the  interest,  that  was  their  own  omission,  and 
the  Court  leaves  them  to  take  the  consequences  of  that  neg- 
lect, and  will  not  give  them  an  equity  founded  upon  their 
own  laches.    But  there  is  no  reason  why,  if  the  parties  settle 
the  matter  between  themselves,  and  the  one  party  gives  time 
to  the  other  for  payment  of  the  arrears  in  consideration  of  the 
allowance  of  interest  on  the  balance,  they  should  not  after- 
wards be  compelled  to  abide  by  that  settlement, 

17.  Money  in  court,  at  the  time  when  the  mortgagee  en- 
tered,  shall  be  applied  to  the  interest.^ 

18.  Upon  the  points,  whether  interest  is  recoverable  in  aU 

1  Horlock  V.  Smitb,  1  Coll.  287. 

VOL.  I.  39 


458  THE   LAW   OF   MORTGAGES.  [CH.  XVI. 

cases  upon  a  mortgage,  and  to  what  amount,  it  is  said :  the 
rule,  that  interest  shall  not  be  recovered  upon  a  bond  beyond 
the  penalty,  does  not  apply  where  the  bond  is  secured  by 
mortgage,  even  though  the  mortgage  is  made  by  a  surety, 
subsequently  to  the  bond,  unless  it  be  expressly  as  security 
for  the  bond  debt,  and  the  interest  to  become  due  on  the 
bond.^  And  interest  will  be  recovered  upon  a  mortgage,  as 
damages^  where  it  is  expressly  provided  for  up  to  the  time  of 
payment  of  the  principal,  if  payment  is  not  made  on  that 
day.2 

19.  It  is  said,  "  supposing  the  word  interest  to  be  omitted 
in  the  mortgage  deed,  it  is  conceived  the  estate  would  still  be 
liable  to  all  arrears ;  for  interest  is  to  be  viewed  not  merely 
as  an  accident  to  the  principal,  but  in  fact  as  part  of  it,  in 
the  same  manner  as  fruit  is  part  of  a  tree.  3  Meri.  566.  The 
yearly  produce  is  to  be  considered  as  included  under  a  gen- 
eral loan  of  the  principal,  and  consequently  as  secured  by 
the  deed  which  secures  the  principal ;  besides,  the  payment 
of  interest  is  a  prominent  object  in  the  mortgage  trans- 
action and  will  in  all  cases  be  presumed,  unless  the  con- 
trary be  expressed.  Farquahar  v.  Morris,  7  T.  R.  124."  ^ 
And  where  a  mortgage  was  conditioned,  that,  on  payment 
of  $500  at  or  before  a  certain  time,  the  deed,  and  a  note 
of  even  date,  promising  to  pay  said  sum  at  that  time, 
should  be  void ;  held,  in  a  suit  for  redemption,  it  might  be 
shown  by  parol  evidence,  that  a  note  for  $500  payable  on 
demand  ivith  interest,  was  the  one  secured  by  the  mort- 
gage, and  that,  in  order  to  redeem,  the  plaintiff  must  pay 
interest.*  The  Court  say  :  °  —  "  There  is  little  danger  that 
the  purchaser  of  an  equity  could  be  deceived  respecting  the 
amount  due  by  a  statement  of  it  contained  in  the  mortgage, 
in  cases  where  a  note,  bond,  or  other  contract  is  referred  to 
as  secured  by  it.  He  would  in  such  cases  be  informed,  that 
other  and  more  certain  means  of  knowledge  existed,  and  of 

1  Coote,  515.  302.     See  Parker  v.  Parker,  17  Mass. 

■^  Ibid.  516.  370. 

»  Pow.  291,  n.  6  Bourne   v.   Littlefield,   29  Maine, 

<  Bourne  v.  Littlefield,  29  Maine,     302. 


CH.  XVI.]      EQUITY    OF   REDEMPTION.  —  TERMS   OF,   ETC. 


45') 


the  source  to  which  he  might  resort  for  more  exuct  inrormii- 
tion.  When  the  rule  is  once  established,  tiiat  the  inortga{?e 
debt  will  remain  secured  after  a  change  in  the  evidence  of 
its  existence,  it  becomes  apparent,  that  it  would  be  wholly 
unsafe  to  rely  in  any  case  upon  the  statement  of  the  amount 
in  the  mortgage.  The  amount  to  be  paid  may  have  been 
increased  by  the  accumulation  of  interest,  by  costs  or  (of) 
litigation,  and  by  repairs  and  improvements,  made  upon  the 
estate  by  a  mortgagee  who  has  entered  into  possession." 

20.  The  question  of  interest  often  becomes  important, 
where  a  particular  tenant  and  a  reversioner  have  distinct 
rights  in  the  mortgaged  estate,  and  the  interest  has  been 
allowed  to  accumulate. 

21.  In  Aston  v.  Aston,'  the  owner  of  the  charge  let  it  run 
in  arrear  eight  years,  and  it  was  held,  that  this  circumstance 
alone  did  not  authorize  the  presumption,  cither  that  the  inter- 
est was  absolutely  released,  or  that  such  neglect  to  demand 
it  was  intended  to  prejudice  the  remainder-man.  So,  in 
Roe  V.  Pogson,^  Sir  Thomas  Plumer,  V.  C,  expressed  the 
Opinion,  that  an  incumbrancer  will  be  entitled  to  arrears 
of  interest  as  against  a  remainder-man,  notwithstanding 
his  neglect  for  many  years  to  claim  interest  from  the  ten- 
ant for  life.  And,  it  is  said,  if  a  tenant  for  life  die,  leaving 
arrears  of  interest,  his  assets  will  be  answerable  therefor  to 
the  next  remainder-man.^  But  if  there  be  any  connivance  or 
unfair  conduct  between  the  particular  tenant  and  the  incum- 
brancer, in  allowing  the  interest  to  accumulate,  and  event- 
ually imposing  it  upon  the  remainder-man,  through  the  death 
or  insolvency  of  the  particular  tenant;  such  ]:>roceeding  may 
prejudice  the  claim  for  interest  against  the  remainder-ni:iii. 
Thus,  in  Bentham  v.  Haincourt,  (Free.  Cha.  30,)  where  the 
first  mortgagee  had  taken  possession,  but  allowed  the  mort- 
gagor, his  son-in-law,  to  receive  the  rents,  and  the  interest  to 
fall  in  arrear;  it  was  held,  that  a  second  mortgagee  should 
have  the  same  rights  as  if  the  interest  had  been  regularly 
paid.     In  such  case,  the  first  mortgagee  would  be  only  post- 

1  1  Ves.  264.    See  Earp,  &c.,  1  Pars.  f  2  Mafl<1- f.f  • 

(Penn.)453.  3  i  p^w. -JW.r,  n. 


460  THE    LAW    OF    MORTGAGES.  [CH.  XVI. 

poned,  not  wholly  deprived  of  his  interest ;  but  if  the  rents 
were  insufficient  to  pay  it  and  also  satisfy  the  second  mort- 
gage, he  might  wholly  lose  such  interest  as  against  the  second 
mortgagee,  though  not  perhaps  the  mortgagor  and  his  heirs.^ 
So  a  mortgaged  estate,  in  possession  of  a  tenant  for  life,  was 
devised  in  strict  settlement.  The  mortgagee  permitted  the 
tenant  for  life  to  run  the  interest  in  arrear,  and  afterwards 
purchased  the  life-estate,  took  possession,  and  received  the 
rents  for  about  three  years,  when  the  tenant  for  life  died. 
Upon  a  bill  for  foreclosure  against  the  remainder-man,  the 
defendant  claimed  to  charge  the  plaintiff  with  the  arrears  of 
interest  due  at  the  time  of  his  purchase,  as  well  as  those 
accruing  subsequently  to  his  taking  possession.  Held,  if  the 
mortgagee  had  entered  as  such,  the  surplus  rents  must  have 
been  applied  in  discharge  of  the  arrears,  and  he  should  not 
be  permitted  to  prejudice  the  reversioner's  rights  by  entering 
as  a  purchaser.  Decreed,  that  an  account  be  taken  of  prin- 
cipal, interest,  and  costs,  and  of  the  rents  and  profits  recetved 
by  the  plaintiff,  which  should  be  applied,  first  to  the  subse- 
quent interest,  and  then  to  the  preceding  arrears.'-^  So,  in  the 
case  of  Ivy  v.  Gilbert,^  a  term  was  created  for  raising  portions 
out  of  annual  profits.  Under  the  usual  proviso  for  the  mort- 
gagor^'s  possession,  the  tenant  for  life  continued  to  occupy 
and  receive  the  rents.  Held,  as  this  was  done  by  permission 
of  the  mortgagee,  the  effect  was  the  same  as  if  he  had  let  the 
estate,  and  he  should  therefore  account  for  the  rents,  having 
a  remedy  over  against  the  personal  representatives  of  the 
tenant  for  life. 

22.  With  regard  to  the  expenditures  of  the  mortgagee  in 
the  care  and  management  of  the  estate  while  he  has  lawful 
possession,  (e)  the  general  rule  is,  that  the  mortgagee  shall 

'  Ld.   Penrhyn  v.   Hughes,  5  Ves.        ^  Penrhyn  v.  Hughes,  5  Ves.  99. 
106.  3  2  P.  Wms.  20. 

(e)  If  his  possession  is  unlawful,  he  will  not  be  allowed  his  expenditures. 
M'Carron  v.  Cassidy,  18  Ark.  34. 

The  burden  of  proof  in  reference  to  payments  and  expenditures  is  strictly 
upon  the  mortgagee.  Strong  v.  Blanchard,  4  Allen,  538.  While  he  is  bound 
to  use  reasonable  care  and  diligence  in  the  management  of  the  estate.    Ibid. 


CH.  XVI.]      EQUITY    OF    REDEMPTION. TERMS    OF,    KTC.  461 

be  allowed  for  all  necessary  repairs,  even  liiough  liiey  exceed 
the  rents  and  profits,  but  not  for  any  which  have  not  increased 
the  value  of  the  premises.'  (/)  He  cannot,  in  general,  have 
an  allowance  for  making  anything  nevv;'-^  and  on  llie  other 
hand  is  not  bound  to  account  for  profits  arising  from  perma- 
nent improvements  made  by  him.3  The  obligation  to  make 
repairs,  and  the  right  to  claim  an  allowance  for  them  when 
made,  are  usually  treated  as  equivalent  propositions, —  the 
one  being  implied  in  the  other. 

23.  It  is  said,  the  mortgagee  is  not  the  substantial  owner 
of  the  estate,  and  therefore  only  bound  to  make  proper,  ju- 
dicious, reasonable,  and  necessary  repairs ;  the  nature  and 
amount  of  which  are  said  to  depend  upon  the  circumstances 
of  each  case,*  or  those  apparently  required  to  preserve  the 
property  and  continue  its  productiveness.^  That,  if  the  mort- 
gagor make  improvements,  they  all  go  to  satisfy  the  mort- 
gage. On  the  same  principle,  if  made  by  the  mortgagee, 
they  are  made  for  his  own  benefit,  and  he  cannot  charge  the 
mortgagor  with  their  cost,  [g]    "  Volenti  nonfit  injuria^    And 

1  Gordon  v.  Lewis,  2  Sumn.   143;  341;  Hagthorp  i-.  Hook,   1   Gill  &  J. 

Reed  v.  Reed,  10  Pick.  398  ;  Lowndes  270. 

V.  Chisliolra,  2  McC.  Ch.  455 ;  M'Con-  *  Dougherty  v.  M'Colgan,  6  Gill  & 

nel  V.  Holobush,  11  III.  61.  J.  275;  M'Cumber  v.  Gilman,  15  111. 

-  Russell  V.  Blake,  2  Pick.  505 ;  15  381 ;  Dexter  v.  Arnold,  2  Sumn.  125, 

111.  381.  126;  Gordon  v.  Lewis,  lb.  143. 

3  Bell  V.  Mayor,  &c.,  10  Paige,  49 ;  ^  Per  Dewey,  J.,    Crafts   i-.  Crafts, 

Hopkins  v.  Stephenson,  J.  J.  Marsh.  13  Gray,  363. 


(/)  By  the  Civil  Law,  the  mortgagee  is  allowed  for  improvements,  thoujih 
not  absolutely  necessary,  with  interest.  1  Dom.  3G5.  In  ^Missouri,  for  all 
permanent  and  useful  improvements.     Bollinger  v.  Choutea;!,  20  Mis.  89. 

{g)  The  law  of:  Jix lures,  as  between  mortgagor  and  mortgagee,  furnishes 
an  illustration  of  the  same  general  principle.  It  has  been  formerly  ques- 
tioned, yvhtithev  fixtures  would  pass  by  a  mortgage  of  the  land,  without  being 
specially  named.  It  seems  to  be  now  settled,  however,  that  they  do  pass. 
Thus  the  mortgagee  may  have  a  bill  for  an  injunction  against  tlicir  removal. 
And  the  mortgagor's  possession  is  not  deemed  fraudulent,  as  in  case  ol  chat- 
tels. Quincyrr  Atk.  477  ;  Amos,  188,  et  seq. ;  Union,  &c.  v.  Emerson,  15 
Mass.  159  ;  Robinson  i;.  Preswick,  3  Edw.  246  ;  LongstafT  r.  Mcagoe,  2  Ad. 
&  Ell.  167. 

The  question  has  also  arisen,  whether  either  mortgagor  or  mortgagee  may 

39* 


462  THE   LAW    OF   MORTGAGES.  [CH.    XVI. 

that  there  is   a  distinction   between   necessary  repairs  and 
highly  beneficial  improvements.^  (A)     "  If  it  were  otherwise, 

1  Clark  V.  Smith,  Saxt.  122 ;  Quinn  v.  Brittain,  1  Hoffm.  Ch.  353. 


remove  erections  which  he  himself  has  made  upon  the  land.  It  has  been 
held  in  Massachusetts,  that  one  holding  land  subject  to  redemption  may, 
even  after  a  decree  to  redeem,  remove  a  barn  and  blacksmith's  shop  erected 
by  him,  and  so  slightly  affixed  that  they  may  be  removed  with  but  little  dis- 
turbance of  the  soil.  But  in  the  same  State  it  has  been  since  decided,  that 
a  kettle,  set  by  the  owner  of  a  freehold,  who  afterwards  mortgages  such  free- 
hold, cannot  be  removed  by  him  or  taken  as  his  personal  property,  but 
passes  by  the  mortgage,  though  appurtenances  are  not  expressly  named. 
And  a  still  later  case  decides  the  same  general  principle,  with  regard  to 
additions  to  the  freehold  made  by  the  mortgagor  after  the  mortgage  ;  and 
the  reason  for  the  distinction  between  such  a  case,  and  that  of  improve- 
ments made  by  a  tenant,  is  shown  to  consist  in  the  fact,  that  both  these  par- 
ties are  presumed  to  make  improvements  for  their  own  benefit;  which  object 
will  be  best  effected,  by  treating  them  in  the  one  case  as  part  of  the  free- 
hold, and  in  the  other  as  personal  property  removable  by  the  tenant.     The 

(/<)  In  a  late  case,  the  terms  necessary  and  convenient  are  said  to  be  used 
in  a  sense  similar  to  that  in  which  they  are  appHed  to  the  repair  of  highways. 
But,  in  the  same  case,  mere  convenient  and  ornamental  repairs  were  alike 
rejected.  Woodward  v.  Phillips,  14  Gray,  133.  The  criterion  is -also  sug- 
gested, that  the  repairs  are  required  to  prevent  ivasle.  These  the  mortgagee 
is  hound  to  make.  M'Cumber  v.  Gilman,  15  111.  381.  The  mortgagee  is 
limited  strictly  to  statutory  expenditures.    Strong  v.  Blanchard,  4  Allen,  538. 

In  a  late  case,  the  improvements  consisting  in  the  erection  of  brick  dwell- 
ing-houses on  vacant  city  lots,  by  the  mortgagee,  who  had  been  in  possession 
six  or  eight  years,  the  mortgagor  knowing  of  the  erection,  and  making  no 
objection  thereto  ;  they  were  allowed  in  the  mortgagee's  account,  to  be  pay- 
able only  out  of  the  rents  and  profits.  Montgomery  v.  Chadwick,  7  Clarke, 
(Iowa,)  114. 

In  the  same  case,  the  profits  were  applied:  (1)  to  pay  the  interest;  (2) 
to  pay  for  improvements,  their  rents  being  also  applied  to  pay  for  them ; 
(3)  to  pay  the  debt ;  and  if  it  should  be  found  that  the  improvements  were 
not  paid  for  in  this  way,  then  the  mortgagor  was  to  elect  whether  he  Avould 
pay  the  balance,  or  permit  the  mortgagee  to  continue  in  possession  until 
remunerated.  Ibid.  Held,  also,  that  the  mortgagee,  where  he  cannot 
strictly  account  for  profits,  shall  be  charged  with  a  fair  rent  on  the  premises 
as  they  were  when  he  took  them,  with  a  rent  on  the  improvements,  if  he  is 
allowed  for  these.     Ibid. 


CH.  XVI.]     EQUITY    OF   REDEMPTION.  —  TERMS   OF,   ETC.  4G3 

a  mortgagee  might  from  whim  or  caprice  make  what  he  con- 
sidered to  be  improvements,  but  such  as  the  mortgagor  would 
not  choose  to  have  made.  A  mortgagor  might  be  in  a  situ- 
ation to  redeem,  by  paying  the  principal  and  interest  of  the 
debt ;  but  wholly  unable  to  redeem,  if  obliged  to  pay  also 
for  such  improvements  as  the  mortgagee  might  be  able  and 
think  proper  to  erect.  Such  a  clog  upon  the  equity  of  re- 
demption would  be  subject  to  great  abuses,  and  increase  the 
difficulties  in  the  way  of  the  right  to  redeem,  and  might  be 
resorted  to  by  a  mortgagee,  knowing  and  disposed  to  take 
advantage  of  the  necessities  of  the  mortgagor,  as  a  means 
of  defeating  the  equity  of  redemption."  ^ 

24.  Upon  these  grounds,  if  a  building  is  very  old  and  dilap- 

1  Per  Buchanan,  C  J.,  Dougherty  v.  McColgan,  6  Gill  &  J.  285,  286. 


further  reason  was  suggested,  that  one  of  the  most  usual  purposes  of  mort- 
gaging, is  the  raising  of  money  to  be  expended  in  improvement  of  the  estate. 
In  New  Hampshire,  a  mortgagor  in  possession  is  a  tres[)asscr,  if  he  remove  a 
mill  which  he  has  himself  built,  or  anything  attached  to  it.  Taylor  v.  Town- 
send,  8  Mass.  411  ;  Union,  &c.  v.  Emerson,  15,  159  ;  Winslow  v.  Merchants, 
&c.,  4  Met.  306  ;  Pettengill  v.  Evans,  5  N.  H.  54.  So  it  is  said,  in  Maine  : 
"Between  landlord  and  tenant,  many  things  are  regarded  as  personal,  which 
would  be  considered  a  part  of  the  realty  in  an  absolute  conveyance  or  a  mort- 
gage. The  mortgagor  generally  looks  to  the  redemption  of  the  property, 
and  what  he  adds  to  it,  of  a  permanent  character,  is  for  his  own  benefit ;  for 
it  is  but' collateral  to  the  debt.  The  case  is  different  with  a  tenant,  who 
cannot  be  considered  as  intending  to  incorporate  the  fixtures  which  he  erects 
with  the  freehold."  Per  Wells,  J.,  29  Maine,  116.  Upon  this  ground,  if  a 
mortgagor  of  a  mill,  after  making  the  mortgage,  put  into  it  a  shingle  machine 
and  apparatus  attached  to  it ;  this  becomes  part  of  the  freehold,  and  passes 
to  the  mortgagee  after  foreclosure.  Corliss  v.  McLagin,  29  Maine,  115.  An 
engine,  placed  in  a  saw-mill  by  a  mortgagee  in  possession,  is  not  a  fixture. 
Cope  V.  Romeyne,  4  McLean,  384. 

The  mortgagor  of  a  saw-miU,  driven  by  water,  converted  the  buildings 
into  paper-mills,  putting  in  proper  machinery  and  a  ae>v  water-wheel.  The 
water-power  proving  insufficient,  he  placed  a  steam-engine  in  the  cellar  of 
one  of  the  buildings,  and  applied  the  power  directly  to  the  driving-wheel, 
thus  moving  it  precisely  as  the  water  would  do.  Held,  the  ongme  did  not 
become  subject  to  the  mortgage,  but  might  be  removed,  llandoiph  i-. 
Gwynne,  3  Halst.  Ch.  88. 


464  THE    LAW    OF   MORTGAGES.  [CH.  XVI. 

idated,  there  is  no  rule  requiring  the  mortgagee  to  incur  a' 
greatly  disproportionate  expense  in  repairing ;  and  he  cer- 
tainly is  not  bound  to  make  any  new  advances.  So,  in  the 
case  of  Dougherty  v.  McColgan,!  i\^q  property  exceeded  in 
value  the  sum  lent,  and  there  was  no  proof  that  it  had  begun 
to  decay,  or  that  the  houses  standing  upon  the  premises  were 
in  a  ruinous  state,  or  were  pulled  down  and  new  ones  erected 
as  a  substitute  therefor,  and  for  the  same  purposes,  but  on 
the  contrary  they  vi'^ere  built  for  new  and  different  purposes. 
There  was,  moreover,  no  long-continued  possession,  and  acts 
of  ownership  by  the  mortgagee  and  acquiescence  by  the 
mortgagor,  without  claim  of  the  right  to  redeem,  begetting 
the  belief  on  the  part  of  the  mortgagee  that  the  property  be- 
longed to  him.  Held,  the  mortgagee  should  not  be  allowed 
for  such  improvements.  So  in  the  case  of  a  mill,  if  the  mill 
could  have  been  used  with  the  machinery  as  it  was  when  the 
mortgagee  took  possession ;  and  if  the  repairs  were  for  the 
purpose  of  increasing  its  speed,  or  enabling  it  to  do  more 
work  than  it  had  formerly  done  when  the  machinery  was  in 
order,  so  as  to  enhance  the  benefit  of  the  possession ;  then  no 
allowance  is  to  be  made  for  repairs.  Otherwise,  if  they  were 
really  indispensable  to  keep  the  mill  in  operation.^  So  a 
mortgagee  or  assignee  in  possession  is  not  allowed  for  im- 
provements in  clearing-  wild  land,  but  only  for  necessary 
reparations,  &c.,  and  must  account  for  the  rents  and  profits 
received  by  him,  except  such  as  have  arisen  exclusively  from 
his  own  improvements.^  So,  where  a  mortgagee  had  opened 
and  worked  mines ;  it  was  held,  as  he  had,  in  the  language 
of  the  Court,  "  actually  sold  away  a  part  of  the  inheritance," 
he  should  be  charged  with  his  receipts,  but  disallowed  his 
expenses.*  But  a  mortgagee  was  allowed  to  charge  for  an 
aqueduct,  the  amount  being  small,  and  the  aqueduct  neces- 
sary to  furnish  water.^ 

25.  The  general  rule  upon  this  subject,  however,  seems  by 

1  6  Gill  &  J.  286.  *  Thorneycroft  v.  Crockett,  16  Sim. 

2  Clark  i".  Smith,  Saxt.  123.  445. 

a  Moore  v.  Cable,  1  Johns.  Ch.  385.        ^  Saunders  v.  Frost,  5  Pick.  259. 


CH.  XVI.]      EQUITY    OF   REDEMPTION.  —  TERMS   OF,  ETC.  405 

no  means  definitely  settled,  and  is  liable  to  be  conlrnllr,!  |,y 
special  circurastances.i  In  Givens  v.  McCalmont,-  Huston, 
J.,  says  :  —  "  The  books  are  full  of  cases,  as  to  what  allow- 
ances for  expenses,  repairs,  and  lasting  improvements  shall 
be  made  to  the  mortgagee  in  possession.  These  cases  do  not 
exactly  agree  ;  in  some,  the  cost  of  beneficial  and  lasting 
improvements  has  been  added  to  the  debt ;  but  in  the  better 
opinions  it  would  seem,  the  allowance  has  been  coufnicd  to 
repairs.  In  several  of  the  States  the  allowance  seems  to  be 
confined  to  repairs.  Everywhere  the  mortgagee  in  jiosses- 
sion  is  chargeable  for  waste,  and  in  England,  particularly,  for 
timber  cut.  There  every  part  of  every  tree  will  bring  cash. 
In  a  country  covered  with  timber,  which  cannot  be  sold,  and 
must  be  removed  before  any  person  can  make  any  use  of  the 
land,  it  would  seem  that  the  law  as  to  timber  must  be  other- 
wise. In  this  State,  no  rule  which  will  apply  to  every  tract 
can  be  laid  down.  In  some  parts  of  the  State,  it  would  be 
difficult  to  find  a  farm  in  which  a  mortgagee  in  possession 
could  cut  more  timber  than  was  necessary  to  be  used  on  the 
farm,  without  committing  waste;  but  in  places  where  many 
farms  have  less  than  ten  acres  in  the  hundred  cleared,  it  is 
not  waste  to  clear  land,  though  in  doing  so  the  timber  is  col- 
lected in  heaps  and  burnt.  The  situation  and  circumstances 
of  each  case  must  then  be  taken  into  view."  Upon  these 
principles,  the  Court  held,  in  that  case,  that  if  the  defendant 
had  used  the  land  cleared  and  the  mill  built  by  him  so  long 
as  to  pay  the  expenses  of  building  the  dam  and  mill ;  he 
should  be  charged  for  the  rent  even  of  his  own  improvements, 
from  the  time  when  he  was  paid  the  expense  of  them ;  with 
the  rent  of  the  farm  in  the  state  it  was  in  when  he  entered, 
from  that  time ;  and,  if  the  clearing  of  the  land  was  an  in- 
jury to  the  farm,  he  should  be  charged  for  waste,  —  other- 
wise  not. 

26.  The  mortgagee  is  allowed  for  improvements,  which 
he  has  made,  supposing  himself  to  be  the  absolute  owner, ^ 

1  2  Greenl.  Cruise,  118,  n.  «  Neale  ..  HaRtl.orp  3  IJIan.l,  m ; 

2  4  Watts,  463.  McConnel  v.    ll;;lo  "'f  -(  }  \  ^J  ,,  ^^^  ' 

Hagthori)  v.  Hook,  1  Oill  \.  J-  ■J-'^'' 


466  THE   LAW    OF   MORTGAGES.  [CH.  XVI. 

though  they  exceed  the  rents  and  profits.^  So,  where  the 
owner  of  the  equity  of  redemption  stands  by  in  silence  and 
sees  improvements  made  by  a  purchaser,  he  cannot  redeem 
without  paying  for  them.^  Though  only  the  cost  of  improve- 
ments is  allowed,  not  their  present  value.'^  (i)  So,  improve- 
ments made  by  a  wrongful  occupant  enure  to  the  benefit  of 
the  mortgagor,  and  the  mortgagee  in  possession  is  chargeable 
for  rents  received  by  reason  of  them.^  The  Court  in  Mary- 
land remark:  — "  The  grounds  of  these  decisions  appear  to 
be,  that  a  mortgagee  in  possession  is  the  legal  holder  of  the 
estate,  which  the  mortgagor  may  at  any  time  redeem,  and 
so  prevent  him  from  making  any  repairs  or  improvements ; 
and  if  the  mortgagee  has  been  long  in  possession  claiming 
adversely,  and  suffered  to  treat  the  estate  as  his  own,  and 
the  mortgagor  stands  by  and  permits  lasting  improvements 
to  be  made  ;  he  shall  pay  for  them."  ^  And  in  the  case  of 
Cazenove  v.  Cutler,*^  Shaw,  C.  J.,  remarks  upon  the  same 
subject  as  follows  :  —  "As  it  is  often  a  question  of  difficulty, 
what  expenses  shall  be  incurred  for  the  benefit,  protection, 
and  preservation  of  the  mortgaged  property,  in  w^hich  both 

1  Mickles  v.  Dillaye,  17  N.  Y.  80.  *  Merriam  v.  Barton,  4  Verm.  501. 

2  Bradley  v.  Snyder,  14  111.  213 ;  17        °  Per  Bland,    Chr.,  Neale   v.   Hag- 
N.  Y.  80.  thorp,  3  Bland,  590,  591. 

8  Hogan  V.  Stone,  1  Ala.  N.  S.  496.  6  4  Met.  251. 


(i)  If  a  purchaser  from  the  mortgagor  make  improvements,  the  mort- 
gagee in  possession  can  retain  only  such  a  rent  as  the  land  would  be  worth 
without  the  improvements.     Stoney  v.  Shultz,  1  Hill,  Ch.  464. 

Where  valuable  improvements  have  been  made,  equit}',  in  decreeing  a 
redemption,  will  pass  such  accompanying  orders,  as  under  the  circumstances 
are  necessary  to  effect  substantial  justice  among  the  parties  in  interest. 
Thus  A.  and  B.  mortgaged  to  the  defendant.  A.  afterwards  gave  a  release 
to  the  defendant,  who  made  improvements  upon  a  part  of  the  land  with  the 
knowledge  of  B.  B.  assigns  to  the  plaintiff  with  notice.  Upon  a  bill  to 
redeem,  held,  the  other  part  of  the  land  should  be  assigned  to  the  plaintiff, 
he  not  electing  to  contribute  to  the  payment  of  the  expenditures  to  the  ex- 
tent of  his  interest,  as  he  might  have  done  ;  and  the  partition  above  named 
being  therefore  necessary  to  effect  substantial  justice  between  the  parties. 
Crafts  1;.  Crafts,  13  Gray,  360. 


CH.  XVI.]      EQUITY   OF   REDEMPTION.  —  TERMS   OF,  ETC.  4i;7 

the  mortgagor  and  mortgagee  have  an  interest,  if  tlic  mort- 
gagee in  possession,  and  the  mortgagor  or  his  assignee,  hav- 
ing the  immediate  right  to  redeem,  consent  and  agree  to  any 
particular  measures  in  this  respect,  and  the  expenses  attend- 
ing them,  such  consent  being  given  with  a  knowledge  or  the 
means  of  knowledge,  of  the  facts  and  circumstances;  the 
expenses  thus  incurred  must  be  reimbursed  by  the  mortgaf^or 
or  his  assignee  holding  the  equity,  on  redemption.  Such 
expense  must  be  considered,  in  point  of  law,  a  reasonable 
and  necessary  expense." 

27.  The  mortgagee  of  a  valuable  estate,  handsomely  laid 
out,  on  which  are  many  young  fruit  and  ornamental  trees,  if 
he  cannot  by  reasonable  eiforts  let  the  estate  for  a  sum  suffi- 
cient to  keep  it  in  reasonable  repair,  including  the  preserva- 
tion of  the  fruit-trees,  may  be  allowed  the  cost  of  such  repair ; 
but  not  for  a  horse,  cart,  cow,  farming  utensils,  and  other 
expenses  of  cultivation.^ 

28.  With  regard  to  the  specific  items  which  shall  or  shall 
not  be  allowed,  it  is  said  in  a  late  case  :  —  "  The  law  seems 
to  be  well  settled ;  but  in  the  great  variety  of  cases  which 
occur,  it  is  difficult  to  prescribe  a  rule,  broad  enough,  and 
at  the  same  time  precise  enough,  to  apply  to  all  cases."  ^ 

29.  Where  the  items  of  repairs  charged  by  a  mortgagee 
were  as  follows :  making  new  wall,  rebuilding  old  wall, 
mowing  bushes,  door  and  casing,  repairing  windows,  handle 
on  front-door,  papering  and  whitewashing  four  rooms,  fire- 
frame,  setting  the  same,  bricks  and  laying  two  hearths,  re- 
pairs on  barn,  carting  off  small  stones,  rails,  posts,  digging 
stone  for  wall ;  the  Court  remarked,  that,  looking  merely  at 
the  report  of  the  master  to  whom  the  case  had  been  referred, 
it  might  be  doubted  whether  some  of  these  items  could  be 
termed  necessary  repairs,  but  that  the  question  was  one 
peculiarly  fit  for  the  master,  and  every  reasonable  presump 
tion  ought  to  be  made  in  favor  of  his  decision,  inasmuch  as 
evidence,  not  appearing  in  the  report,  was  probably  submit- 

1  CI       1       1        -«T-ii     r  n         A^o.  -2  Vpt  Shaw,    C.   J.,    Woodward   r. 

1  Sparhawk  ..  Wills,  5  Gray,  423.        ^^^^.  rer^  bhaw,  ^^^  ^^ ._ 


468  THE    LAW    OF   MORTGAGES.  [CH.    XVI. 

ted  to  him,  which  showed  these  repairs  to  be  necessary.^ 
And  it  has  been  since  held,  that  the  report  of  a  master,  as 
to  the  allowance  to  a  mortgagee  for  repairs  and  improve- 
ments, is  conclusive,  unless  a  mistake  clearly  appears.^  So, 
where  a  master  in  chancery,  to  whom  it  was  referred  to  state 
an  account  between  mortgagee  and  mortgagor,  upon  a  bill 
to  redeem,  reported  that  certain  repairs  and  improvements 
made  by  the  former  were,  in  the  opinion  of  the  master,  neces- 
sary and  permanent,  and  that  he  had  allowed  therefor  such 
a  sum  as  they  would  have  cost  a  judicious  and  experienced 
farmer ;  but  did  not  report  the  evidence :  held,  the  principle 
adopted  was  substantially  correct,  and  it  should  be  presumed 
that  the  items  of  the  allowance  were  supported  by  the  evi- 
dence.^ 

30.  In  Godfrey  v.  Watson,''  Lord  Hardwicke  said,  that  a 
mortgagee  in  possession  was  not  obliged  to  lay  out  money 
any  further  than  to  keep  the  estate  in  necessary  repair ;  but 
if  he  had  expended  money  in  supporting  the  title  of  the  mort- 
gagor when  it  had  been  impeached,  he.  would  allow  it.  So 
a  mortgagee  in  possession  will  be  allowed  for  the  expenses 
of  foreclosing,  or  advances  of  money  for  fines  on  the  renewal 
of  leases  under  which  the  premises  were  held.^  So  the  mort- 
gagee may,  but  is  not  obliged  to  discharge  prior  incumbrances. 
He  will  be  allowed  in  his  account  all  payments  made  for  this 
purpose ;  ^  more  especially  where  the  mortgagor  ought  to 
have  cancelled  the  prior  mortgage.'^  [j) 

1  Reed  v.  Reed,  10  Pick.  398.  ^  ciark  v.  Smith,  Saxt.  122. 

2  Adams  v.  Brown,  S.  J.  C.  Mass.  ^  2  Greenl.  Cruise,  118,  n. ;  Marine, 
Mar.  1851  ;  Law  Rep.  May.  1851,  p.  &c.  v.  Biars,  4  H.  &  J.  343  ;  Arnold  v. 
38  ;  7  Cush.  220.  Eoot,  7  B.  Mon.  06  ;  Page  v.  Foster, 

3  Boston  Iron  Co.  v.  King,  2  Cush.  7  N.  H.  392.  See  Lyman  v.  Little,  16 
400.  Verm.  576. 

*  3  Atk.  517  ;  ace.  Saxt.  122.  "  MiUer  v.  Whittier,  36  Maine,  577. 


(j)  A  surety,  holding  a  mortgage  for  his  indemnity,  and  having  paid  the 
note,  is  entitled,  upon  a  sale  of  the  mortgaged  premises,  to  charge  all  amounts 
paid  by  him  to  remove  prior  incumbrances,  with  simple  interest ;  and  is 
bound  to  account  for  moneys  received  by  him,  with  like  interest.  Riddle  v. 
Bowman,  7  Fost.  236. 


CH.  XVI.]      EQUITY    OF    REDEMPTION.  —  TKRMS    OF,  KTO.  469 

31.  Where  mortgagees  filed  a  bill  to  separate  their  interest 
from  that  of  the  mortgagor,  after  the  levy  of  an  execution 
against  him  upon  the  land  ;  held,  they  should  not  be  allowed 
from  the  fund  reasonable  solicitor's  fa es}  But  costs  of  suit, 
and  fees  paid  for  legal  opinions  necessary  in  the  execution 
of  the  trust,  have  sometimes  been  allowed.^  So  where  a  first 
mortgagee  held  as  security  for  his  claim  certain  chattels  as- 
signed to  him  and  others,  some  of  which  were  attached  and 
taken  from  him  by  other  creditors ;  and  he  thereupon  brought 
an  action,  in  good  faith,  and  for  the  benefit  of  the  assignees, 
for  such  taking,  but  did  not  prevail:  held,  he  might  claim  the 
expenses  of  such  suit,  as  part  of  the  mortgage  debt.^ 

32.  If  a  mortgagee,  not  expressly  authorized  to  effect  in- 
surance at  the  mortgagor's  expense,  nor  entitled  td  require 
the  latter  to  insure,  does  effect  insurance  without  the  j^rivity 
of  the  mortgagor;  he  will  not,  as  a  matter  of  course,  be 
allowed  to  charge  the  premiums  in  his  account.'*  But  it  is 
otherwise,  where  he  effects  insurance  at  the  request  of  the 
mortgagor,  and  pays  the  premium.^  So,  if  a  mortgagee  in 
possession  for  breach  of  condition  insure  his  interest,  without 
any  agreement  therefor  with  the  mortgagor;  in  case  of  a 
loss,  which  is  paid  to  the  mortgagee,  the  mortgagor,  upon  a 
bill  to  redeem  and  an  account  stated,  cannot  claim  a  deduc- 
tion of  this  amount  from  the  mortgagee's  charges  for  re- 
pairs.^ 

1  Harbinson  v.  Harrell,  19  Ala.  753.  Land,  8  Hare,  216  ;  13  Law  Rep.  247  ; 

'^  Neale  v.  Hagthorp,  3  Bland,  590.  Faure  v.   Winans,  Hopk.  283;  Sauii- 

^  Pettibone  v.  Stevens,  15  Conn.  19.  ders  v.  Frost,  5  Pick.  259. 

*  Dobson    V.    Land,    14    Jur.    288  ;  '"  Mix  v.  Hotclikiss,  14  Coun.  32. 

Clark   V.    Smith,   Saxt.   122 ;  King   v.  »  White  v.  Brown,  2  Cusli.  412. 
The  State,  &c.  7  Cush.  8 ;  Dobson  v. 

A  mortgagee,  who  is  bound  to  aci'ount  with  the  mortgagor  upon  a  .sale  of 
the  mortgaged  premises,  and  has  paid  moneys  to  remove  a  preexisting  mort- 
gage, and  also  a  right  of  dower,  is  not  discharged  frosn  any  part  of  his  lia- 
bility by  having  taken  assignments  of  such  mortgage  and  right  of  dower. 
Ibid. 

A  sum  of  money,  paid  by  the  mortgagee  for  the  purchase  from  a  tliird 
person  of  a  mere  supposed  interest,  but  not  actual,  cannot  be  allowed. 
Veach  V.  Schaup,  3  Clarke,  (Iowa,)  194. 

VOL.  I.  40 


470  THE   LAW    OF   MORTGAGES.  [CH.  XVL 

33.  The  mortgagee  will  be  allowed  for  taxes,  the  payment 
of  which  is  necessary  to  protect  the  estate.^  (A-) 

34.  Where  the  mortgagee  has,  in  pursuance  of  his  author- 
ity, made  sale  of  any  part  of  the  estate,  the  proceeds  of  sale 
will  of  course  be  deducted  from  the  sum  to  be  paid  for  re- 
demption of  the  remainder.  Thus  a  mortgage  was  made  by 
separate  instruments,  at  the  same  time,  by  and  to  the  same 
parties,  of  real  and  personal  property,  to  secure  one  debt. 
The  mortgage  of  personal  property  provided,  that,  if  the 
mortgagee  should  take  possession  for  breach  of  condition,  he 
or  his  assignee  might  sell  the  property  at  auction,  and  with 
the  proceeds  pay  the  expenses  and  the  debt.  The  mortga- 
gee afterwards  assigned  both  mortgages  to  one  person,  and 
the  right  in  equity  to  redeem  the  mortgage  of  the  real  estate 
was  attached  and  sold  on  execution.  The  assignee  after- 
wards took  and  sold  the  personal  property.     In  a  bill  brought 

1  Mix  V.  Hotchkiss,  14  Conn.  32 ;  Clark  v.  Smith,  Saxt.  122. 


(Jc)  Upon  foreclosure,  in  Xew  York,  taxes  may  be  added  to  the  debt ; 
and  any  deficiency  after  such  addition  recovered  by  the  mortgagee.  So  the 
mortgagor  will  remain  liable  for  it,  even  after  a  new  bond  and  mortgage 
from  a  purchaser  of  the  estate.  Eagle,  &c.  v.  Pell,  2  Edw.  Ch.  631 ;  ace. 
Williams  v.  Hilton,  35  Maine,  547. 

If  a  mortgagee  pays  taxes,  he  will  be  presumed  to  do  so  for  the  benefit  of 
the  security,  and  not  on  the  personal  liability  of  the  owner  of  the  lands,  and 
such  payment  will  give  a  lien  on  the  land,  and  be  added  to  the  mortgage 
debt.     Kortright  v.  Cady,  23  Barb.  490. 

In  Massachusetts,  (St.  1848,  c.  166,  §§  1,  2,)  if  any  mortgagee  of  real  es- 
tate, residing  in  the  city  or  town  where  it  lies,  notifies  the  clerk  in  writing, 
before  the  assessment  of  a  tax,  that  he  holds  such  mortgage,  describing  the 
property ;  the  collector,  before  selling,  shall  demand  payment  from  him, 
according  to  sec.  18,  c.  8,  of  the  Revised  Statutes.  And  if  a  non-resident 
mortgagee  shall  appoint  an  attorney,  agreeably  to  the  20th  section  of  said 
chapter,  the  demand  shall  be  made  upon  the  attorney. 

By  Stat.  8  &  9  Vict.  c.  56,  an  incumbrancer  in  possession  may  obtain 
authority  from  Court,  to  improve  by  draining,  &c.,  the  cost  to  be  charged 
upon  the  land,  and  paid  by  instalments,  with  interest.  Among  the  expenses 
tor  which  allowance  may  be  made,  have  been  mentioned  paving  contribu- 
tions and  ground-rent.     Neale  v.  Ilagthorp,  3  Bland,  590. 


CH.  XVI.]       EQUITY    OF   REDEMPTION.  —  TERMS   OF,  ETC.  471 

against  him  by  the  execution  purchaser  to  redeoin ;  held,  if 
the  sale  of  the  personal  property  was  a  fair  one,  the  actual 
proceeds,  or,  if  not,  the  amount  for  which  it  might  have  been 
sold  at  auction,  should  be  deducted  from  the  sum  due  on 
the  mortgage.^  Held,  also,  the  mortgagee  having  had  the 
possession  and  use  of  both  the  real  and  personal  property, 
and  made  sale  of  the  latter,  as  above  stated,  and  applied  the 
proceeds  to  the  debt;  that,  in  stating  an  account  in  this  suit, 
the  rent  of  the  premises  might  embrace  the  use  and  occupa- 
tion of  both  the  real  and  personal  property  for  the  whole 
time  ;  provided  there  were  no  charge  of  interest  on  the  pro- 
ceeds of  the  personal  estate  from  the  time  of  the  sale.^ 

35.  Questions,  relating  to  an  account  of  the  rents  and 
profits,  arise  not  only  between  the  first  mortgagee  and  the 
mortgagor,  but  also  between  the  mortgagee  and  creditors  of 
the  mortgagor,  first  and  second  mortgagees,  or  a  second  mort- 
gagee and  the  mortgagor.^ 

36.  A  second  mortgagee,  after  satisfaction  of  the  first 
mortgage,  may  claim  from  the  first  mortgagee,  after  notice, 
the  rents  and  profits  which  have  not  been  accounted  for  to 
the  mortgagor,  so  far  as  the  same  are  necessary  to  the  satis- 
faction of  his  mortgage.'^ 

37.  A  second  mortgagee,  who  purchases  and  takes  an 
assignment  of  the  first  mortgage,  and  with  the  mortgagor's 
consent  sells  a  part  of  the  mortgaged  property,  and  wood 
growing  upon  another  part,  may  apply  the  proceeds  of  sale, 
as  against  one  claiming  under  the  mortgagor,  to  the  first 
mortgage,  unless  the  mortgagor  requests  him,  at  the  time  of 
receiving  them,  to  apply  them  to  the  second  mortgage.^ 

38.  If  a  prior  mortgagee,  who  has  entered  and  received 
the  rents  and  profits,  afterward  purchase  the  equity  of  re- 
demption, he  does  not,  by  such  purchase,  so  far  as  the  sub- 
sequent   mortgagee    is    concerned,   change    his    position    or 

1  White  V.  Brown,  2  Cush.  412.  "  Gordon  r.  Lewis.  2  Sumn.  143. 

2  n,i(3  5  Parker  r.  Green,  8  .Met.  137. 

'■^  See  Lewis  v.  DeForrest,  20  Conn. 
427  ;  Ponieroy  v.  Latting,  2  Allen,  221. 


472  THE   LAW    OF   MORTGAGES.  [CH.  XVI. 

accountability  for  the  rents  and  profits  received,  but  after- 
wards continues  in  possession  as  mortgagee.^ 

39.  Mortgage  to  the  defendant ;  a  second  to  one  A.,  and 
a  third  to  A.  and  the  two  plaintiffs.  A.  assigns  his  interest 
in  the  two  last  mortgages  to  the  defendant,  who  enters  for 
non-payment  of  interest  on  the  first  mortgage.  The  plain- 
tiffs bring  a  bill  to  redeem  the  two  first  mortgages.  Held, 
the  defendant  could  not  apply  the  rents,  &c.,  to  the  third 
mortgage,  having  entered  only  for  breach  of  condition  of  the 
first.2 

40.  A  mortgagee,  in  possession  for  the  purpose  of  fore- 
closure, agreed  with  other  mortgagees  to  waive  his  entry  and 
possession,  and  that  the  parties  should  jointly  occupy  for  the 
security  and  payment  of  their  claims,  and  that  the  land 
should  not  be  sold  for  five  years  without  consent  of  the  mort- 
gagor. Held,  the  mortgagee  first  named  was  not  hereby 
authorized  to  bind  the  mortgagor  by  any  payments  or  expen- 
ditures which  would  not  otherwise  have  been  allowable.^ 

41.  It  has  been  held,  that,  if  the  mortgagee  either  enters 
on  the  land,  but  allows  the  mortgagor  to  take  the  profits,  or 
permits  him  to  use  the  mortgage  for  keeping  off  other  cred- 
itors, he  will  be  held  accountable  for  the  profits.^  But  if  a 
first  mortgagee  enter  conformably  to  the  statute,  for  breach 
of  condition,  but  permit  the  mortgagor  to  retain  possession, 
without  accounting  for  the  rents  and  profits,  he  does  not 
thereby  himself  become  liable  to  account  for  them  with  a 
second  mortgagee  ;  even  though  he  entered  in  order  to  pre- 
vent an  attachment  of  the  crops  by  the  mortgagor's  credit- 
ors.^ Dewey,  J.,  remarks  :  —  "  The  language  of  the  Revised 
Statutes,  c.  107,  requiring  the  mortgagee  to  account  for  rents 
and  profits,  would  seem  to  embrace  cases  only  of  actual  pos- 
session ;  and  in  the  case  of  a  mortgagor  permitted  by  the 
mortgagee  to  continue  in  possession,  and  to  take  the  profits, 
after  a  formal  entry  by  the  mortgagee,  equity  would  clearly 

'  Harrison  v.  Wyse,  24  Conn.  1.  *  Coppring  v.  Cooke,  1  Vern.  270; 

-  SaundtTs  v.  Frost,  5  Pick.  259.  Chapman  v.  Tanner,  Ibid.  267. 

■^  Strong  17.  Blanchard,  4  Allen,  538.        ^  Charles  v.  Dunbar,  4  Met.  498. 


CH.  XVI.]      EQUITY    OF    REDEMPTIOX. TERMS    OF,  ETC.  478 

forbid  that  the  mortgagee  should  be  held  lo  acroiinl  lor 
them  with  the  mortgagor.  Does  the  law  require  a  dilFerctil 
rule  when  applied  to  the  case  of  one  holding  as  a  second 
mortgagee  ?  Where  one  who  has  made  two  mortgages  is 
left  in  possession  by  both  the  first  and  second  morlgagoe, 
and  takes  the  rents  and  profits  without  disturbance  from  the 
second  mortgagee,  clearly  so  long  as  no  formal  entry  for  eon- 
dition  broken  is  made,  the  first  mortgagee  is  not  liable  to 
account  in  favor  of  the  second.  This  being  so,  —  a  mere 
formal  entry,  avowedly,  to  foreclose,  —  but  in  fact,  leaving 
the  mortgagor  in  possession  and  enjoying  the  profits,  will 
not  of  itself  charge  the  first  mortgagee  to  account  with  the 
second.  The  second  mortgagee  may  take  the  possession,  as 
against  that  of  the  mortgagor,  if  the  latter  holds  in  his  own 
right,  and  thus  exclude  him  and  take  the  rents  and  profits  to 
his  own  use.  If  such  second  mortgagee  should  be  prevented 
from  making  such  entiy,  by  the  previous  entry  and  actual 
occupation  of  the  first  mortgagee,  or  by  his  claiming  to  ex- 
clude the  second  mortgagee  by  virtue  of  the  superior  title 
conferred  by  the  first  mortgage  and  the  occupation  under  it; 
then  he  would  be  held  to  account,  in  favor  of  the  second 
mortgagee,  for  the  rents  and  profits."  He  proceeds  to  re- 
mark, that  the  second  mortgagee  might  protect  himself,  by 
paying  the  first  mortgage,  and  himself  taking  control  of  the 
premises  ;  that  the  first  mortgagee  is  not  estopped  by  his 
mere  entry,  from  denying  that  he  received  the  rents,  cVc,  be- 
cause his  possession  might  be  afterwards  abandoned  with- 
out fraud  ;  and  that  he  could  not,  by  reason  of  such  entry, 
be  treated  as  one  who  by  his  conduct  induced  another,  to 
part  with  his  property,  or  forego  the  enforcement  of  his 
rights.  "  Nor  do  we  think  that  the  purpose  of  the  formal 
entry,  namely,  to  aid  the  mortgagor  in  withiiolding  from  the 
attachment  of  other  creditors  the  produce  of  the  farm,  allects 
the  present  question.  If  the  possession  was  not  in  fact  in 
the  mortgagee,  the  creditors  might  have  made  valid  attach- 
ments of  the  produce  of  the  farm.     They  did  not  interfere, 

40* 


474  THE   LAAV    OF   MORTGAGES.  [CH.  XVI. 


• 


however ;  and  we  think  the  purpose  of  the  first  mortgagee's 
entry  does  not  enlarge  the  rights  of  the  second."  (1) 

42.  Where  a  mortgagee  has  possession  of  only  part  of 
the  premises,  a  subsequent  incumbrancer  cannot  charge  him 
as  in  possession  of  the  whole.^ 

43.  It  is  held  that  one  acquiring  tortious  possession,  and 
buying  in  a  mortgage,  is  liable  to  a  prior  mortgagee  for  the 
rents  and  profits,  including  a  fair  rentable  income,  though 
he  may  not  have  received  it,  and  also  interest  on  each  annual 
instalment  from  the  time  it  falls  due.^ 

44.  A  mortgagor  may  assig-n  the  surplus  rents  received  by 
the  mortgagee  after  satisfaction  of  the  debt ;  and  the  assignee 
may  maintain  a  bill  in  equity  for  an  account.^  (m) 

45.  Where   the  land   mortgaged  is   probably  insufficient 

1  Soar  V.  Dalbey,  15  Eng.  Law  &        ~  Boyce  v.  Boyce,  6  Rich.  Eq.  302. 
Eq.  124.  '^  Gordon  v.  Lewis,  2  Sumn.  143. 


(/)  Tiie  same  general  principle  has  been  applied  in  a  late  case  to  a  dif- 
ferent state  of  facts.  Mortgage  from  A.  and  B.  to  C.  to  secure  a  joint  debt, 
and  entry  for  foreclosure.  A.  and  B.  attorned  to  C,  and  occupied  till  the 
death  of  A.,  when  B.  continued  sole  tenant.  The  administrator  of  A.  brings 
a  bill  to  redeem.  Held,  C.  was  not  bound  to  account  for  the  rents  and 
profits  prior  to  A.'s  death,  nor  for  those  subsequently  received,  unless  A.  and 
B.  were  not  partners,  in  which  case  B.  would  have  a  lien  upon  the  estate, 
but  tenants  in  common,  and  the  plaintiff  was  kept  out  by  C.  Cilley  v.  Huse, 
40  N.  H.  358. 

(in)  The  mortgagor  may  sometimes  be  held  accountable  for  the  rents  and 
profits  received  by  him.  Thus  the  purchaser  of  an  equity  of  redemption, 
where  the  mortgagee  has  not  made  an  entry,  may  maintain  trespass  qu.  cl. 
freg.  against  the  mortgagor  in  possession  for  the  rents  and  profits,  without  a 
previous  entry.  Fox  v.  Harding,  8  Shepl.  104.  A  purchaser  from  the 
mortgagor  cannot  claim  to  have  the  value  of  the  improvements  made  by  him 
deducted  from  the  proceeds  of  a  sale  of  the  land.  If  the  value  has  been 
thereby  increased,  he  may  have  the  benefit  of  it  by  paying  the  debt,  or  in 
the  increased  price  of  the  land.  On  the  other  hand,  if  the  land  has  depre- 
ciated, so  as  to  bring  less  than  the  debt,  the  mortgagee  bears  the  loss. 
Hughes  V.  Edwards,  9  Wheat.  489. 

In  case  of  a  receiver,  the  owner  of  the  equity  may  be  charged  with  an 
occupation  rent.     1 1  Paige,  436. 


OH.  XVL]      equity    of   redemption.  —  TERMS   OF,  ETC.  475 

security  for  the  debt,  and  the  party  personally  liublc  i.s  in- 
solvent, more  especially  if  no  provision  is  made  to  give  ilu- 
mortgagee  a  lien  on  the  rents  and  profits  ;  after  the  debt  is 
due,  the  mortgagee  may  have  a  receiver  appointed  by  the 
Court.i  (^^^  ^n(j  ll^Q  gajne  course  inay  sometimes  be  taken 
for  the  protection  and  benefit  of  the  mortgagor.  But  there 
must,  it  is  said,  be  fraud  or  imminent  danger,  to  justify 
this  proceeding  ;  2  and  the  bill  or  petition  must  set  forth  insol- 
vency or  danger  of  loss  ;  not  merely  the  complainant's  title  ; 
and  that  the  other  party  has  entered  wrongfully.^     The  rea- 

1  Astor  V.  Turner,  11   Paige,  436;     mier,   2   Halst.   Ch.   154;    Langlon  i: 
Warner  v.    Gouverneur,    1   Barb.  3G.     Langton,  31  Eng.  Law  &  Kq.  422. 
See  Jones  v.  Smith,  1  Hare,  43  ;  Clark        -  Tlioniiison  v.  Difrendutcr    1   Md 
V.  Curtis,  1  Gratt.  289  ;  Best  v.  Scher-    Ch.  489.  ' 

3  Clark  V.  Eidglcy,  Ibid.  70. 


(n)  A  receiver  is  an  indifferent  person  appointed  by  the  Court  of  Chan- 
eery  to  receive  the  rents  and  profits  of  land  or  other  thing  in  question,  pend- 
ing a  suit,  where  it  does  not  seem  reasonable  to  the  Court  that  the  parties 
themselves  should  be  in  receipt  of  the  rents.  The  power  of  appointing  a 
receiver  is  a  discretionary  one,  and  does  not  affect  the  rights  of  the  parlies. 
The  appointment  is  made  by  the  master,  on  motion  to  the  Court.  The 
master  ascertains  the  incumbrances  and  their  priorities,  and  the  receiver  is 
directed,  from  the  rents  and  annual  proceeds,  to  pay  the  interest  accordingly, 
and  the  balances  into  the  bank.  A  receiver  is  never  appointed,  but  in  case 
of  idiots  and  lunatics,  except  in  connection  with  a  pending  suit.  1  I'ow. 
294,  a.  n.  A  receiver  is  an  ofScer  of  the  Court,  but  his  appointment  deter- 
mines no  right,  nor  does  it  affect  the  title  of  the  property.  It  will  not  pre- 
vent the  running  of  (he  statute  of  limitations.  His  holding  is  the  holding  of 
the  Court,  for  him  from  whom  the  possession  was  taken.  He  is  ajjpointed 
on  behalf  of  all  parties,  and,  if  any  loss  arises  from  deficiency  in  his  accounts, 
the  estate  must  bear  it.  EUicott  v.  The  United  States,  &c.,  7  Gill,  307.  The 
appointment  of  a  receiver  "  does  not  grow  directly  out  of  the  relations  of 
the  parties,  or  the  stipulations  contained  in  the  mortgage,  but  out  of  eijuila- 
ble  considerations  alone.  It  is  not  a  matter  of  strict  right,  but  is  addressed 
to  the  sound  discretion  of  the  Court."  Per  Pratt,  J.,  Syracuse,  &c.  v.  Tall- 
man,  31  Barb.  208,  209.  The  effect  of  his  appointment  is  not  to  oust  any 
party  of  his  right  to  the  possession  of  the  property,  but  merely  to  reUin  it 
tor  the  benefit  of  the  party  ultimately  entitled ;  and  when  such  party  has 
been  ascertained,  the  receiver  will  be  considered  as  his  lecciver.  Ellicott  v. 
The  United  States,  &c.  7  Gill,  307. 


476  THE   LAW    OF   MORTGAGES.  [cil.  XVI. 

sons  must  be  imperative ;  as,  that  the  security  is  inadequate, 
the  rents  and  profits  expressly  pledged,  or  imminent  danger 
of  the  waste,  removal,  or  destruction  of  the  property.  It  is, 
however,  a  question  of  sound  discretion,  depending  on  the 
circumstances.^  And  it  is  held,  that  the  mortgagee  has  no 
right  to  a  receiver,  pending  a  suit  for  foreclosure."  Thus, 
upon  a  bill  by  a  mortgagee,  before  default,  to  stay  waste, 
but  not  requiring  a  sale,  a  receiver  cannot  be  appointed.^ 
Nor  where  the  property  is  merely  insufficient  security  for  all 
incumbrances  upon  it,  unless  alleged  to  be  insufficient  for  the 
particular  debt  of  the  plaintiff  himself.'*  And  the  mortgage 
must  be  due,"^  though  the  precise  amount  need  not  be  sworn 
to.®  If  payable  by  instalments,  and  if  the  property  cannot 
be  sold  in  separate  parcels,  so  as  to  satisfy  an  instalment 
which  is  due  ;  the  mortgagee  may  foreclose  the  whole,  and 
has  an  equitable  claim  to  the  rents  and  profits,  upon  filing  his 
bill,  and  may  have  a  receiver  appointed."  If  the  property  is 
so  situated  that  it  would  require  a  bailiff  or  receiver  in  case 
it  were  his  own,  it  is  said  the  mortgagee  may  appoint  one 
without  authority  of  the  mortgagor ;  but  that  he  cannot  in 
such  case  have  a  receiver  appointed  by  the  Court,  nor  ap- 
point himself  receiver,  even  though  expressly  agreed.*'  Thus, 
in  Langstaffe  v.  Fenwick,^  an  account  was  opened,  because 
the  mortgagee  had  taken  a  poundage  as  receiver.  So,  in 
Scott  V.  Brest,^*^  where  a  mortgage  recited,  that,  for  better  se- 
curing the  mortgage-money,  it  had  been  agreed  that  the  mort- 
gagee should  be  receiver  of  the  rents,  wath  a  salary  of  X40  a 
year,  by  way  of  commission-money  for  his  trouble  and  loss 
of  time ;  this  was  held  a  usurious  provision,  though  it  was 
admitted,  that  the  mortgagee  might  law^fuUy  be  appointed 
receiver,  and,  if  the  rents  had  been  received  merely  in  that 
character,  the  transaction  would  have  been  perfectly  innocent. 

1  Morrison   v.    Buckner,    1    Heiup.        ^  4  Sandf.  Cli.  405. 
442.  «  Qarrell  v.  Bcckford,  13  Ves.  377. 

^  Gray  v.  Ide,  6  Cal.  99,  ">  (^uincy  v.    Cheeseman,   4   Sandf. 

*  llobinson  v.  Preswick,  3  Edw.  Cli.  Ch.  405. 

246.  »  Coote,  404. 

*  Warner  v.   Gouverneur,   1  Barb.         ^  10  Ves.  405. 
36.  w  2  T.  R.  241. 


CH.  XVI.]       EQUITY   OF   REDEMPTION. —  TERMS   OP,  ETC.  -ITT 

To  constitute  usury,  there  must  be  a  usurious  lakiii^'.  80 
in  Carew  v.  Johnston,^  it  was  said  by  Lord  Redrsdalc 
that  for  the  mortgagee  to  charge  receiver's  fees  for  himself, 
was  fraudulently  erroneous,  and  taking  an  unlawful  advan- 
tage. 

46.  A  receiver  will  not  be  appointed  against  a  mortgagee 
in  possession,  at  the  suit  of  a  creditor  of  the  mortgagor,  so 
long  as  the  mortgagee  will  swear  there  is  a  balance  due  iiim, 
though  the  fact  is  contested,  if  he  is  able  to  respond  for  what 
he  may  receive.^ 

47.  In  Berney  v.  Sewell,^  the  Lord  Chancellor  said,  he 
knew  of  no  instance  where  the  Court  had  appointed  a  receiver 
against  a  mortgagee  in  possession,  unless  the  parties  making 
the  application  would  pay  him  off  according  to  his  claim,  as 
stated  by  himself;  that  if  a  man  has  a  legal  mortgage,  he 
cannot  have  a  receiver  appointed  ;  he  has  nothing  to  do  but 
to  take  possession.  If  he  has  only  an  equitable  mortgage, 
and  the  prior  mortgagee  is  not  in  possession,  the  second 
mortgagee  may  have  a  receiver  without  prejudice  to  his  tak- 
ing possession ;  but  if  he  is  in  possession,  the  second  mort- 
gagee must  redeem  ;  and  then,  in  taking  the  accounts,  the 
first  will  not  be  allowed  any  sums  paid  over  to  the  mortgagor 
after  notice  of  the  second  mortgage.  (0) 

1  2  Sch.  &  L.  301 ;  French  v.  Baron,        -  Quinn  v.  Brittain,  3  Edw.  Ch.  CI4. 
2  Atk.  120.  ^  1  Jac.  &  W.  647. 


(0)  Where  a  mortgagor  becomes  bankrupt,  and  a  deficiency  of  liis  prop- 
erty is  apprehended,  and  a  prior  mortgagee  obtains  the  appointment  of  a 
receiver  to  collect  the  rents ;  such  mortgagee  acquires  a  lien  upon  the  rents, 
and  on  motion  they  can  be  applied  to  the  mortgage.  Post  v.  Dorr,  4  Edw. 
Ch.  412. 

A  foreclosure  bill  was  filed  by  a  testator,  in  whicli  two  successive  motions 
for  a  receiver  were  refused,  one  of  them  with  costs.  The  testator  did.  Ili.s 
executors  did  not  revive,  but  filed  a  new  foreclosure  bill,  without  having 
paid  the  costs  of  the  refused  motion.  Held,  they  were  at  liberty  to  do  so, 
but  that  it  was  not  a  course  to  be  encouraged.  Long  v.  Storie,  10  Kng.  Law 
&  Eq.  182. 

A  receiver  against  a  mortgagee  in  possession  was  granted  after  decree,  on 


478  THE   LAW    OF   MORTGAGES.  [CII.  XVI. 

48.  The  Court  will  not,  by  an  interlocutory  order,  before 
the  hearing,  charge  a  party  who  is  in  possession  of  an  estate, 
and  who  has  been  ordered  to  pay  an  occupation  rent  to  the 
receiver,  with  the  amount  of  such  rent,  for  any  period  ante- 
cedent to  the  date  of  the  order  for  fixing  the  rent  and  ap- 
pointing the  receiver.^ 

49.  Where  a  receiver  of  rents  has  been  appointed,  in  a  suit 
to  which  the  mortgagee  is  not  a  party,  and  the  rents  are  paid 
into  court ;  the  Court  will  not  order  them  paid  to  him,  al- 
though he  had  notified  the  tenants  to  pay  him.^ 

50.  A  mortgage-debt  being  all  due,  and  the  security  defec- 
tive, the  mortgagee  brought  a  bill  to  foreclose,  and  obtained 
an  injunction  against  the  collection  of  rents  by  the  purchaser 
of  the  equity,  and  the  appointment  of  a  receiver.  The  pur- 
chaser had  taken  a  note  from  the  tenant  for  the  arrears  of 
rent,  secured  by  a  mortgage  of  personal  property  from  a  third 
person.  Held,  no  merger  of  the  rent,  and  that  the  receiver 
was  entitled  to  collect  it,  in  preference  to  the  purchaser  of  the 
equity.^ 

1  Lloyd  V.  Mason,  2  My.  &  C.  487.  ^  Lofskv  v.   Manger,  3  Sandf.   Ch. 

2  Coote,  430.  69. 


application  of  another  mortgagee,  a  co-defendant.  Hiles  v.  Moore,  1.5  Eng. 
Law  &  Eq  130.  But  it  has  been  held,  that  a  receiver  will  not  be  appointed 
against  a  first  mortgagee  in  possession,  on  ajiplication  of  a  second  mortgagee, 
though  the  first  mortgage  is  disputed,  unless  it  be  shown  that  the  first  mort- 
gagee will  be  unable  to  respond  for  the  rents.  Trenton,  &c.  v.  Woodruff,  2 
Green,  Ch.  210. 

A  third  mortgagee  took  possession,  and  then  bought  the  first  mortgage, 
retained  possession  many  years,  and  received  a  considerable  sum.  The  sec- 
ond mortgagee  applied  for  a  receiver.  The  affidavit  of  the  third  mortgjigee 
not  satisfactorily  showing  that  anything  remained  due  on  the  first  mortgage, 
a  receiver  was  ordered.     Ibid. 

The  mortgagee  of  a  life-estate,  over  which  a  receiver  had  been  appointed, 
having  taken  no  steps  to  recover  his  debt  and  interest  during  the  life  of  the 
mortgagor,  was  held  not  to  be  entitled  after  liis  decease  to  a  fund  in  court, 
which  had  been  paid  in  by  the  receiver  from  time  to  time,  after  keeping 
down  the  interest  on  a  prior  mortgage,  affecting  the  fee ;  but  the  same  was 
held  to  form  part  of  the  personal  estate  of  the  mortgagor.  Flight  v.  Camac, 
39  Eng.  Law  &  Eq.  93. 


CH.  XVI.]      EQUITY    OP    REDEMPTION.  —  TERMS    OF,  ETC.  47H 

51.  In  the  case  of  Meaden  v.  Sealy,>  the  Couit,in  appoint- 
ing  a  receiver  upon  motion,  refused  to  authorize  him  to 
expend  XlOO  in  putting  leasehold  houses,  included  in  the 
mortgage,  into  a  fit  state  for  occupancy;  although  e:i,()00 
was  due  on  the  mortgage,  and  no  payment  of  p'Jincip-'il  or 
interest  had  been  made  for  a  considerable  time,  and  mo.st  of 
the  houses  were  unfinished  and  undtcuplcd. 

52.  All  parties  in  interest  should  regularly  hv  Ix'forf  the 
Court,  in  order  to  justify  a  decree  to  account  for  rents  and 
profits  received.  Thus,  in  1808,  Webb  mortgaged  to  Has- 
kell ;  in  1816,  Haskell  assigned  his  mortgage  to  the  defend- 
ant,  Lewis ;  and,  in  1831,  Lewis  assigned  it  to  the  ]*ortland 
Manufacturing  Company.  In  1812,  the  mortgagor  conveyed 
to  John  Gordon,  who,  in  1832,  conveyed  to  the  plaintiff. 
Upon  a  bill  to  redeem  against  Lev/is  and  the  company  ; 
held,  the  plaintiff'  could  not  have  a  decree  for  payment  of 
the  rents  and  profits  to  him,  until,  by  supplemental  proceed- 
ings, other  parties  in  interest  had  opportunity  to  appear.^  (/>) 

1  6  Hare,  620.  2  Gordon  v.  Lewis,  2  Sumn.  145. 


(p)  In  Maine  and  Rhode  Island,  the  mortgagor  will  be  entitled  to  redeem, 
by  paying  or  tendering  the  debt  due  with  interest  and  costs,  or  porfbrining 
or  tendering  performance  of  any  otiier  condition  of  the  mortgage,  together 
with  the  amount  of  reasonable  expenses  incurred  in  repairs  and  betterments, 
over  and  above  the  rents  and  profits.     In  Maine,  if  tlie  mortgagor  has  paid 
money  to  the   mortgagee  or  brought  it  into  court,   without  deduction  on 
account  of  the  rents  and   profits  received  1)}^  the  mortgagee,  he  shall  be 
entitled  to  a  restitution  of  the  balance  due  him  on  this  account.     In  Massa- 
chusetts, if  the  mortgagee  or  any  one  under  him  has  had  possession,  he  sliall 
account  for  the  rents  and  profits  and  be  allowed  for  reasonable  repairs  and 
improvements,  for  taxes  and  assessments,  and  other  necessary  expenses  in 
the  care  and  management  of  the  estate.     If  there  is  a  balance  due  him,  it 
shall  be  added  to  the  amount  which  the  mortgagor  is  to  tender ;  if  there  is  a 
balance  due  from  him,  it  shall  go  to  sink  the  debt.     In  Georgia,  a  mortgagee 
is  made  liable  for  taxes  on  the  land,  if  the  mortgagor  does  not  pay  tlicm. 
Mass.  Rev,  St.  636  ;  1  Smith's  St.  160,  161,  164  ;  Prince,  848;  Maine  Rev. 
St.  557. 


480  THE  LAW  OF  MORTGAGES.         [CH.  XVII. 


CHAPTER  XVII. 

EXTINGUISHMENT   OF   A   MORTGAGE,   BY    PAYMENT,   RELEASE,    ETC. 

1.  In  general,  payment  of  the  debt  ^  the  rule  above  stated.  Extinguishment 
pays  the  mortgage  also.  of  a  mortgage  without  direct  payment  ; 

2.  Payment  after  breach  of  condition;  I  by  renewal  of  notes,  appointment  of 
waiver  as  to  time.     Changing  the  securitg    executors,  legal  proceedings,  &c. 

for  a  debt  does  not  extinguish  the  mort- j      20.  Application    or    appropriation    of 
gage.     New  notes,  &c.  payments  ;  mutual  claims  and  offsets. 

8.  Effect  upon  the  mortgage  of  legal  |  23.  Presumptions  and  circumstantial 
and  judicial  proceedings,  either  be-  j  evidence  as  to  payment.  Parol  evi- 
tween  the  parties,  or  in  connection  with    dence. 


strangers. 

10.  Of  making  the  mortgagor  the 
executor,  «S:c.  of  the  mortgagee. 

11.  Whether  a  deposit  shall  be  treated 
as  payment. 

12.  Surrender  of  the  note  for  a  re- 
lease of  the  right  of  redemption  ;  wheth- 
er payment. 

13.  Exceptions  and  qualifications  to 


30.  The  effect  of  payment  upon  the 
titles  of  the  respective  parties  and 
their  remedies. 

42.  Extinguishment  of  a  mortgage, 
by  a  transfer  of  the  land  to  the  mort- 
gagee. 

49.  Release  or  discharge  of  a  mort- 
gage.    Discharge  upon  the  record. 

58.  When  a  release  may  be  avoided. 


1.  From  the  intimate  connection  between  the  debt  secured 
by  mortgage  and  the  mortgage  itself,  which  has  been  already 
explained,  (see  Chap.  XL,)  it  of  course  results  as  a  general 
proposition,  that  whatever  extinguishes  the  former,  puts  an 
end  to  the  latter  also.^  And  it  cannot  be  kept  alive  by  a 
mere  parol  agreement.^  It  is  said,  "  A  mortgage  is  an  assign- 
ment on  condition ;  the  condition  being  performed,  the  con- 
veyance is  void  ab  initio.  Equity  dispenses  with  the  time, 
and  when  the  money  is  paid,  the  conveyance  is  void  in  equity 
and  conscience."  ^  "A  mortgage  is  but  a  security  for  the 
payment  of  the  debt,  and  when  that  is  paid  or  extinguished, 
it  can  never  be  resuscitated."  *  "  By  payment,  the  whole 
mortgage  is  extinct;  as  much  so  as  if  released  or  paid  and 
cancelled  of  record.     It  ceases  to  operate  either  at  law  or  in 

^  Sherman  v.  Sherman,  3  Ind.  337;  ^  Per  Wigram,  Vice-Chancellor,  Vis- 

Champney  v.  Coope,  34  Barb.  539.  count,  &c.  v.  Morris,  3  Hare,  405. 

■^  3  Allen,  339;  Downer  v.  Wilson,  *  Per  Duncan,  J.,  Anderson  v.  Neff, 

33  Verm.  1.  11  S.  &  R.  223. 


cii.  xvil]  payment,  release,  etc.  4JJ1 

equity,  and  the  whole  title  revests  in  the  inortga<^or.  'J'o  cull 
it  a  mortgage  would  be  an  abuse  of  the  word.  It  is  no  tuore 
than  a  blank."  ^  On  the  other  hand,  entering  of  a  disohurgi- 
of  a  mortgage  by  the  mortgagee  does  not,  of  itself,  discharge 
the  debt,  but  the  security  only .2  (a)  Considering  a  mortgage 
as  a  conveyance,  it  would  be  more  technically  accurate  to 
speak  of  it  as  discharged,  or  released,  than  paid;  but,  wiien 
viewed  in  its  true  light,  of  a  mere  accompaniment  to  the 
debt,  it  is  a  correct  as  well  as  familiar  use  of  language,  to 
say  that  the  mortgage  as  well  as  the  debt  h  paid,  (b)       ^, 

2.  The  practice,  almost  universal  in  the  United  States,  is 
to  insert  in  the  mortgage  deed,  whether  of  a  freehold  or  a 
chattel  interest,  a  proviso,  that  on  payment  of  the  money  at 
the  time  mentioned  the  deed  shall  be  void.  And,  as  the 
time  of  performance  is  not  of  the  essence  of  this  contract, 
and  may  be  waived  by  parol,  the  acceptance  of  the  money 

1  Per  Cowen,  J.,  Cameron  v.  Irwin,  Ind.  320.     See  3  Ind.  337  ;  Law  Kcp. 

5  Hill,  276;  ace.  Furbusli  v.  Goodwin,  Nov.  1856,  p.  399. 

5  Fost.   425  ;   Blodgett  v.  Wadhams,  '^  Sherwood  v.  Dunbar,  6  Cal.  53. 
Hill  &  Den.  65  ;  Led^ard  v.  Cliapin,  6 


(a)  Payment  of  a  pari  of  a  mortgage-debt  is  held  a  satisfaction  and  release 
of  the  mortgage,  j)ro  tcnito,  and  parol  proof  of  such  release  is  admissible. 
Howard  v.  Gresham,  27  Geo.  347. 

If  a  partnei'ship  debt  is  secured  by  a  mortgage  from  two  tenants  in  com- 
mon, payment  of  the  debt  extinguishes  the  mortgage,  and  it  cannot  be  kept 
in  force  as  security  for  a  debt  due  from  one  of  the  mortgagors.  Tliomas, 
&c.,  30  Penn.  378. 

(b)  In  the  case  of  Jackson  v.  Davis,  (18  Johns.  7,)  it  was  held,  that,  though 
the  recital  in  one  deed  of  another  absolute  deed  is  evidence  of  the  existence 
of  the  latter,  an  outstanding  mortgage  cannot  be  thus  proved ;  because,  if 
produced,  it  might  appear  to  have  been  satisfied,  which  wouM  revest  a  litlr 
in  the  mortgagor  without  release. 

Payment,  and  a  reconveyance  of  the  premises,  entitle  tlic  mortgagor  to 
possession  of  the  title-deeds,  and  he  may  claim  damages  for  the  loss  of  them 
unless  explained.  Brown  v.  Sewell,  21  Eng.  Law  &  Eq.  508.  raynu-nt  in 
bills  of  a  specie-paying  bank,  current  at  the  place  of  payment,  is  sudlcient. 
Augur  y.  Winslow,  1  Clark,  258.  See  M'Donald  «.  M'Doiiald,  16  Verui. 
630  ;  Bolles  v.  Chauncey,  8  Conn.  389. 

VOL.    I.  41 


482  THE   LAW    OF   MORTGAGES.  [ciI.  XVII. 

after  the  day  amounts  to  a  waiver  of  the  time,  and  is  a  sub- 
stantial performance  of  the  condition.^  (c)  But  the  receipt 
of  interest  by  a  mortgagee,  several  times  after  it  fell  due,  is 
no  waiver  of  the  right  to  enforce  payment  of  a  subsequent 
instalment  and  forfeiture.^  Nor  will  such  waiver  result  from 
an  agreement  to  receive  part  of  the  instalment  before  due, 
not  complied  with  by  the  mortgagor.^ 

3.  A  mortgage  being  given  as  security  for  a  debt,  and 
not  merely  for  any  particular  evidence  of  debt,  the  general 
rule  is,  that  no  mere  change  in  the  mode  and  time  of  pay- 
ment, nothing  short  of  actual  payment  of  the  debt,  or  an 
express  release,  will  operate  as  a  discharge  of  the  mortgage. 
The  lien  lasts  as  long  as  the  debt^  (d)  It  is  said,  in  reference 
to  a  note  or  bond  secured  by  mortgage,  "  the  mortgage  and 
the  note  were  two  distinct  securities.  Nothing  but  payment 
of  the  debt  will  discharge  the  mortgage.  This  position  is 
grounded  on  the  words  of  the  condition  of  the  mortgage, 

1  2  Greenl.  Cruise,  123,  n.  ;  M'Mil-  Pressly,  1  Chev.  2a  part ;  Williams  v. 

Ian  V.  Richards,  9  Cal.  365.  Starr,  5  Mis.  534  ;  .Spring  v.  Hill,  6 

-  The    Contributors    v.   Gibson,    2  Cal.  17  ;  Baxter  i'.  M'lntire,  13  Gray, 

Miles,  324.  171 ;  Cleveland  v.  Martin,  2  Head,  128 ; 

3  Ibid.  Choleau  v.  Thompson,  3  Ohio,  (N.  S.) 

*  Morse  v.  Clayton,  13  Sm.  &  M.  424;  Babcock  v.  Morse,  19  Barb.  140. 
373;  1   Freem.   Ch.   307;   Burton   v. 


(c)  The  mortgagee  cannot  be  compelled  to  receive  payment  or  reconvey 
the  property  be/ore  the  day  named  in  the  mortgage.  Brown  v.  Cole,  14 
Sim.  427  ;  ace.  2  Greenl.  Cruise,  123,  n. ;  9  Jur.  290;  Abbe  v.  Goodwin,  7 
Conn.  377.  The  purchaser  of  a  part  of  the  land  cannot  require  the  niort- 
gageeto  receive  such  payment,  though  the  mortgagor  is  insolvent.  Hoag  v. 
Rathbun,  1  Clark,  12.  The  mortgagee  may  waive  the  mortgage  lien,  and 
accept  payment  without  foreclosure.     Byars  v.  Bancroft,  22  Geo.  34. 

(J)  A  mortgage  debt  may  be  extinguished,  as  a  personal  claim  against 
the  mortgagor,  and  the  land  still  remain  liable  for  the  amount  of  such  debt. 
As  where  the  mortgagee  releases  the  mortgagor  from  his  personal  liability, 
in  connection  with  a  transfer  by  the  latter  to  a  third  person,  who  assumes 
the  mortgage  debt.  And  whether  the  debt  or  the  mere  personal  liability 
was  meant  to  be  discharged,  is  a  question  of  fact,  depending  on  the  circum- 
stances of  the  case,  or  the  construction  of  the  release.  Tripp  v.  Vincent, 
3   Barb.  Ch.  614. 


CH.  XVII.]  PAYMENT,   RELEASE,   ETC.  48-3 

which  always  are,  that  if  the  money  he  paid,  then  the  note  or 
bond,  as  well  as  the  nnortgage  deed,  shall  be  void,  and  other- 
wise both  shall  remain  in  full  force.  By  the  terms  of  the 
contract,  nothing  but  payment  is  to  avoid  it."  ^ 

4.  Various  applications  of  this  principle  are  found  in  the 
books.  The  most  fi-equent  and  familiar  one  is,  that  a  mort- 
gage made  to  secure  a  promissory  note  will  remain  security 
for  any  new  note  given  in  payment  of  the  former  one,^  (e)  un- 
less there  is  an  intention  to  the  contrary.^     And  more  espe- 

1  Davis  V.  Maynard,  9  Mass.  247.  ^  Hadlock   v.  Bulfinch,   31   Maine, 

2  Biirdett  v.  Clay,  8  B.  Monr.  287  ;     24G. 
Bank,  «tc.  v.  Finch,  3  Barb.  Ch.  293  ; 
Heard  v.  Evans,  Freem.  Ch.  79. 

(e)  The  same  rule  Is  adopted,  where  both  a  new  note  and  a  new  mort- 
gage are  taken.  Smith  v.  Stanle}',  37  Maine,  11.  Taking  a  second  mort- 
gage is  no  waiver  of  a  prior  one  made  for  the  same  debt.  Burdett  v.  Clay, 
8  B.  Mon.  287.  So  taking  personal  security  for  a  mortgage  debt  is  no  waiver 
of  the  mortgage.  Ibid. "  The  retaining  of  an  old  note  and  mortgage,  as 
security  for  a  new  note,  which  is  given  for  the  amount  remaining  due  on 
such  note  and  mortgage,  will  not  render  the  new  note  invalid  for  want  of 
consideration.     Langley  v.  Bartlett,  33  Maine,  4  77. 

A  mortgage  given  by  one  of  several  holders  of  land,  for  his  ratable  pro- 
portion of  a  debt  secured  by  a  mortgage  upon  the  whole,  is  a  continuation 
of  the  lien  acquired  under  the  original  mortgage.  Flanders  v.  Barstow,  6 
Shepl.  3o7. 

"^Vhere  there  was  a  mortgage  to  secure  a  bond,  but  not  expressly  refer- 
ring to  it,  and  the  bond  was  avoided  by  a  fraudulent  alteration  ;  the  mort- 
gage was  still  held  valid,  and  evidence  of  the  debt.  Gillett  v.  Powell,  Spears, 
Ch.  142.  Where  a  mortgagee  released  the  mortgagor  from  all  the  debts 
and  liabilities  secured  by  the  mortgage,  the  land  was  held  to  be  discharged. 
Armitage  v.  Wickliffe,  12  B.  Mon.  488.  Where  land  mortgaged  is  taken 
for  public  uses,  the  damages  awarded  become  a  substitute  for  the  land,  and 
subject  to  the  lieu  thereof.  Astor  i'.  Miller,  2  Paige,  68.  Especially,  if  the 
residue  of  the  mortgaged  premises  are  released  from  the  incumbrance.  As- 
ter V.  Hoyt,  5  Wend.  603. 

A  sale  on  credit  of  mortgaged  property,  under  a  power  given  in  the 
mortgage,  and  the  taking  of  the  purchaser's  twelve  months'  bond  for  the 
purchase-money,  does  not,  by  the  laws  of  Louisiana,  operate  as  a  novation 
or  extinguishment  of  the  mortgage  debt.  Union  Bank,  &c.  v.  Stalibnl,  12 
How.  (U.  S.)  327. 


484  THE  LAW  OF  MORTGAGES.         [CH.  XVII. 

cially  where  the  cancellation  of  the  old  note  is  made  without 
authority  of  the  mortgagee.^  And  as  between  the  parties.^ 
Thus  in  the  case  of  Watkins  v.  Hill,^  it  was  held,  that,  although 
a  negotiable  note  is  in  Massachusetts,  primd  facie,  payment  • 
of  the  debt  for  which  it  was  given,  yet  a  new  note,  given 
in  place  of  an  old  one  which  is  secured  by  mortgage,  to  an 
assignee  of  the  mortgage,  is  subject  to  the  same  security  as 
the  former  note,  unless  intended  as  payment,  and  as  between 
the  mortgagee  and  mortgagor  or  their  respective  representa- 
tives ;  however  it  might  be  in  reference  to  a  purchaser  of  the 
equity  of  redemption.  And,  in  the  case  of  Pomroy  v.  Rice,* 
the  qualification  above  suggested  was  rejected  by  the  same 
Court,  and  the  rule  adopted  without  exception,  that,  where  a 
mortgage  and  note  are  given  to  secure  the  payment  of  a  sura 
of  money,  the  renewal  of  the  note  does  not  operate  as  a  dis- 
charge of  the  mortgage.  This  was  an  action  upon  a  mort- 
gage made  October  25,  1825,  to  one  of  the  plaintiffs,  who 
were  husband  and  wife,  before  marriage,  to  secure  two  notes 
for  $200  each,  one  payable  in  three,  the  other  in  seven  years, 
from  April  1,  1826.  About  April  1,  1828,  the  mortgagee 
gave  up  these  notes  and  took  two  new  ones  for  $200  each, 
payable  like  the  others  ;  also  a  separate  note  for  the  interest, 
which  was  paid.  The  object  of  this  renewal  was  to  obtain 
the  interest.  In  July,  1828,  the  plaintiffs  intermarried,  and 
the  wife  delivered  the  notes  to  the  same  person  who  procured 
the  former  renewal,  and  requested  him  to  renew  them  in  the 
husband's  name.  On  or  about  April  1,  1829,  he  did  so, 
taking  two  negotiable  notes  in  the  husband's  name,  each  for 
$212,  being  the  principal  and  one  year's  interest,  one  payable 
on  demand,  the  other  in  four  years.  At  these  several  renew- 
als, nothing  was  said  of  the  mortgage.  The  note  payable 
on  demand  was  paid.     April  26,  1829,  the  mortgagor  con- 

1  Baxter  v.  M'Intire,  13  Gray,  108.  19  Verm.  172  ;  M'Donald  v.  M'Donald, 

^  Cottes  V.  Jeffers,  7  Flor.  284;  Bir-  10  Venn.  030;  Bolles  v.  Chauncey,  8 

ncl  I'.  Eskic,  'J  Cal.  104.  Conn.  389. 

"  8  Tick.  522 ;  Bank,  &c.  v.  Rose,  1  *  16  Pick.  22. 

Strob.  Eq.  257  ;  Dunshee  v.  Parmelee, 


CH.  XVir.]  PAYMENT,   RELEASE,   ETC.  485 

veyed  to  the  defendant  with  warranty.  The  defendant 
pleaded  accord  and  satisfaction,  upon  which  issue  was 
joined.  In  giving  the  opinion  of  the  Court  in  favor  of  the 
demandant,  Mr.  Justice  Wilde  remarked :  ^  "It  has  been  ar- 
gued, that  taking  the  new  notes  is  primd  facie  evidence  of 
the  payment  of  the  old.  But  if  it  were,  the  circumstances, 
under  which  the  notes  were  renewed,  are  abundantly  suffi- 
cient to  rebut  any  presumptive  evidence  that  the  mortgage 
debt  was  paid.  Tidd  was  requested  to  have  the  notes  re- 
newed, which  ex  vi  termini  rebuts  the  presumption  of  pay- 
ment." So,  where  a  mortgage  is  made  to  secure  the  accom- 
modation indorser  of  a  note,  which  is  to  be  discounted  at  a 
bank,  and  the  usage  of  the  bank  is  to  renew  such  notes ;  the 
security  is  held  to  cover  each  renewal,  whether  so  expressed 
in  the  mortgage  or  not.^  So  a  mortgage  was  given  to  indem- 
nify the  mortgagee  "  from  all  losses  by  reason  of  his  liability 
as  surety."  The  mortgagee  was  surety  upon  the  mortgagor's 
note,  which  was  placed  in  a  bank  for  collection.  The  mort- 
gagor paid  part  of  the  note,  gave  a  new  one  for  the  balance, 
which  the  mortgagee  indorsed,  and  afterwards  became  insol- 
vent, and  the  property  was  sold  under  a  decree,  and  the  pro- 
ceeds brought  into  court.  Held,  although  the  mortgagee  had 
actually  paid  nothing  upon  the  new  note,  his  claim  had  pri- 
ority of  those  of  subsequent  mortgagees.^  So  the  mortgage 
security  will  apply  to  a  note  given  in  renewal  of  a  former 
one,  although  the  former  note  was  made  jointly  with  another 
person,  and  the  latter  by  the  mortgagor  alone.*  So,  although 
the  notes  were  renewed  by  giving  others  with  different  names, 
but  the  mortgagee  still  remained  liable  as  at  first,  no  new 
credit  was  given,  and  he  finally  paid  the  new  notes.^  And 
it  is  held  that  the  amount  of  the  note  may  be  diminished 


1  16  Pick.  24.  »  Markell  v.  Eichelberger,  12  Md.  78. 

2  Enston  v.  Friday,  2  Rich.  (S.  C)  *  New   Hampshire,  &c.   v.   Wiliard, 
427,  n.  ;    Handy  v.  Commercial,   &c.,  10  N.  H.  210. 

10  B.  Mon.  98;   Smith  v.  Prince,  14  &  Pond  u.  Clarke,  14  Conn.  334,  (over- 
Conn.  472.  ruling  Peters  v.  Goodrich,  3  Conn.  14G.) 

41  * 


486  THE   LAW    OF   MORTGAGES.  [CH.  XVII. 

or  even  increased,^  (/)  or  the  new  differ  from  the  old  one, 
in  being  made  payable  at  a  certain  place.2  j^^^  t^g  ^lew 
note  may  be  applied  otherwise  than  in  payment  of  that  which 
immediately  preceded  it.'^  So,  where  the  original  note  had 
priority  of  a  homestead  right,  such  priority  attaches  to  the 
note  given  in  renewal,  though  the  homestead  has  intervened.* 
And  the  rule  more  especially  prevails,  as  against  an  incum- 
brance subsequent  to  the  renewed  personal  security.  Thus 
A.  mortgaged  to  B.  to  secure  a  note,  in  return  for  which  B. 
gave  his  note,  to  come  due  a  few  days  later;  both  notes  were 
put  into  market,  and  at  maturity  B.  paid  his  own,  and  then, 
in  return  for  a  new  note  from  A.,  gave  A.  a  new  note,  with 
the  avails  of  which  the  first  note  of  A.  was  paid,  it  being 
agreed  that  the  mortgage  should  stand  as  security.  Held, 
that  this  repledging  the  security  for  the  second  note  was 
good,  against  an  incumbrancer  whose  lien  attached  after  such 
repledging.5  So  if  the  mortgagee  indorse  the  note  and  after- 
wards pay  it,  this  does  not  discharge  the  mortgage.^  And  a 
renewal  does  not  affect  the  security,  even  if  there  is  no  express 
agreement  as  to  its  continuance.'  (g)     Or,  it  is  held,  even 

^  BrinkerhoflP  v.  Lansing,  4  Johns.  *  Strachn  v.  Foss,  42  N.  H.  43. 

Ch.  65;  Gault  v.  M'Gratli,  32  Penn.  ^  Kobinson    v.   Urquhart,    1   Beasl. 

392.  515. 

2  Whittaker  v.  Dick,  5  How.  (Miss.)  ^  Rogers  i;.  Traders',  &c.,  6  Paige, 
296.  583. 

3  32  Penn.  392.  '  Cullum  v.  Branch,  &c.,  23  Ala.  797. 


(/)  One  owing  a  debt  of  S2,000  assigned  to  the  creditor  two  notes  of 
$1,000  each,  and  also  gave  him  a  mortgage  of  real  estate.  Tlie  debt,  ex- 
cept Si, 100,  being  afterwards  paid,  the  creditor  gave  up  the  notes,  and  took 
the  debtor's  notes  for  this  sum.  Held,  the  mortgage  remained  as  security 
for  the  last-named  notes.     McCormick  v.  DIgby,  8  Blackf.  99. 

(j)  .Such  agreement,  however,  is  regarded  as  an  additional  reason  for  the 
application  of  the  general  rule.  Thus  a  purchaser  of  lands  executed  to  the 
seller  notes  and  mortgages  of  the  lands  for  the  price.  On  the  same  day, 
the  notes  were  given  up,  and  a  written  agreement  made  between  the  par- 
ties, that  the  mortgagor  would  pay  the  amount  of  them  upon  certain  notes 
from  the  mortgagee  to  a  third  person,  given  for  the  same  lands,  and  that 


CH.  XVir.]  PAYMENT,   RELEASE,   ETC.  4S1 

though  it  was  originally  stipulated  that  the  note  should  be 
renewed  only  to  a  certain  time,  and  it  was  renewed  for  three 
years  afterwards,  even  as  against  a  subsequent  mortgagee.^ 

5.  A  note  may  be  extended  by  the  extension  of  the  mort- 
gage which  secures  it.  Thus,  a  mortgage  being  conditioned 
for  the  payment  of  two  notes  at  different  times,  it  was  agi-eed 
to  "  extend  the  mortgage  fifteen  or  twenty  days."  Held,  the 
payment  of  each  note  was  hereby  extended  twenty  days  be- 
yond its  maturity,  but  no  further.^ 

6.  If  a  guardian  give  a  mortgage  of  indemnity  to  his  surety, 
who  joins  him  in  a  new  bond  ;  the  mortgage  is  security  for 
such  bond.^  So  where  a  bond  secured  by  mortgage  was 
paid  by  a  check,  and  a  note,  payable  on'  time,  which  were 
indorsed  on  the  bond,  and  the  bond  given  up ;  and  the  note 
was  not  paid  when  due ;  held,  the  mortgage  was  not  extin- 
guished."* 

7.  The  same  rule  is  applied  to  the  giving  of  bills  of  ex- 
change for  a  mere  mortgage  debt.  Thus  a  mortgage  was 
made,  to  secure  £10,000,  with  interest.  Before  any  default, 
the  mortgagor  paid  £7,000,  by  check,  and  gave  two  bills  of 
exchange,  drawn  by  himself  and  company  upon  himself,  and 
accepted  by  him,  for  the  balance,  taking  from  the  mortgagee 
the  following  memorandum :    "  Received,  &c.,    (describing 

1  Farmers',   &c.    v.   Mutual,    &c.,  3        ^  Bobbitt  v.  Flowers,  1  Swan,  511. 
Leigli,  69.  *  Maryland,  &c.  v.  Wingert,  8  Gill, 

-  Flanders  v.  Barstow,  6  Shepl.  357.     170. 


such  payments  should  be  applied  on,  and  be  a  discharge  of,  the  mortgages. 
The  mortgagee  assigned  the  mortgages  and  the  agreement,  and  the  assignee 
also  a^^signed  them.  Upon  a  bill  by  the  second  assignee  to  foreclose ;  held, 
the  mortgages  were  still  in  force,  and  the  bill  was  maintained.  Hugunin  v. 
Starkweather,  5  Gilm.  492.  The  Court  say  (5  Gilm.  497)  :  —  "It  was  cer- 
tainly competent  for  the  parties,  by  their  agreement,  to  change  the  mode,  or 
particular  terms  of  payment,  or  even  amount,  and  still  retain  the  mortgage 
as  security  for  the  sum  due.  If  they  thought  proper.  Such  an  agreement 
was  not  immoral,  and  it  violated  no  law  ;  and  it  would  be  hard  to  assign 
any  reason  why  parties  capable  of  contracting  might  not  enter  into  such  an 
asfreement." 


488  THE  LAW  OF  MORTGAGES.         [CH.  XVII. 

the  securities,)  which  are  in  full  of  principal  and  interest  due 
to  me  upon  a  mortgage,  &c.,  and  I  do  hereby  undertake, 
whenever  required,  to  execute  a  conveyance  of  the  said  prop- 
erty." The  title  and  mortgage  deeds  of  the  premises  were 
delivered  to  the  mortgagor.  The  check  was  paid,  but  the 
bills  were  dishonored.  The  mortgagor  conveyed  to  a  trus- 
tee for  benefit  of  creditors,  and  then  became  bankrupt,  and 
the  mortgagee  never  reconveyed  the  premises.  The  mortga- 
gee brings  a  bill  in  equity  against  the  mortgagor,  his  trustee, 
and  his  assignee  in  bankruptcy.  Held,  the  above  transac- 
tions did  not  discharge  the  mortgage,  but  the  plaintiff  was 
entitled  to  a  decree  against  all  the  defendants  for  a  restora- 
tion of  the  deeds  and  a  foreclosure.^  The  Vice-Chancellor 
says  :  ^  —  "If  I  were  satisfied  that  the  agreement  between 
them  was  understood  and  intended  by  them  to  be,  that  the 
mortgaged  estate  should  be  absolutely  discharged,  whether 
the  bills  were  honored  or  dishonored,  productive  or  waste 
paper,  however  unusual  or  improvident  I  might  consider  such 
an  agreement,  I  might  very  possibly  have  thought  it  right 
to  give  effect  to  such  a  contract  clearly  proved.  It  is  con- 
tended that"  the  transactions  above  stated  "  amount  to  clear 
proof  of  such  an  agreement.  I  am  not  however  satisfied  that 
this  as  between  themselves,  was  intended  by  them  ;  the  form 
of  the  receipt  and  the  facts  to  which  I  have  referred,  being, 
in  my  judgment,  neither  conclusive  on  the  point,  nor  of 
themselves  sufficient  to  establish  so  improbable  a  state  of 
things.  I  think  the  case  also  capable,  if  necessary,  of  being 
view'cd  in  a  manner  analogous  to  that  in  which  questions  of 
lien  between  vendors  and  purchasers  of  real  estate  are  con- 
sidered. Generally,  where  a  vendor  receiving  bills  for  the 
purchase-money  signs  a  receipt  for  the  amount  as  cash,  and 
actually  conveys  the  estate  as  upon  payment,  he  retains,  as 
between  him  and  the  purchaser,  a  lien  on  the  estate  for  the 
money  in  the  event  of  the  bills  being  dishonored,  unless  the 
purchaser  can  show  an  agreement  to  the  contrary.      Why 

1  Tccd  I'.  Carruthers,  2  Y.  &  Coll.  (Cha.)  31.  '^  Ibid.  pp.  39,  40. 


CH.  XVir.]  PAYMENT,    RELEASE,    ETC.  489 

should  a  mortgagee  reconveyhig  to  the  mortgagor,  on  receiv- 
ing payment  in  the  shape  of  bills,  be  in  a  worse  situation 
than  a  vendor  having  or  not  having  a  binding  contract  prior 
to  the  conveyance  ?  In  the  present  case  a  reconveyance  has 
not  taken  place  ;  but  probably  if  it  had,  (though  it  is  not 
necessary  to  decide  this  point,)  it  would,  in  my  judgment, 
have  made  no  difference."  So,  where  a  note  was  secured  by 
mortgage,  and,  after  the  equity  of  redemption  had  been  sold 
on  execution,  the  mortgagee  received  from  the  mortgagor  a 
recognizance,  acknowledged  before  a  Justice  of  the  Peace, 
for  the  sum  due  on  the  note,  which  was  thereupon  left  with 
the  Justice,  who  afterwards,  without  any  direction  from  the 
mortgagee,  delivered  it  to  the  maker ;  this  proceeding  was 
held  not  to  discharge  the  mortgage.^  So,  where  a  mortgagee 
takes  the  assignment  of  a  note,  giving  a  receipt  therefor,  with 
the  agreement  to  release  the  mortgage  on  payment  of  the 
note;  the  mortgage  continues  in  force  till  such  payment,  nor 
is  he  bound  to  bring  a  suit  on  the  note.^  So  to  a  real  ac- 
tion upon  a  mortgage  it  is  not  a  good  plea,  that  the  mortga- 
gee agreed  puis  darrein  continuance  to  accept  in  payment  of 
the  debt  property  to  be  appraised ;  that  it  was  accordingly 
appraised  for  more  than  the  debt ;  and  that  the  mortgagor 
had  tendered  a  conveyance,  which  was  refused.^ 

8.  And  substantially  the  same  principle  has  been  applied 
in  various  cases,  where  an  extinguishment  of  the  debt,  in 
terms  secured  by  mortgage,  has  been  set  up  on  other  grounds 
than  actual  payment  of  money,  or  even  the  giving  of  new 
security.  Thus,  in  the  case  of  Gary  v.  Prentiss,*  it  appeared 
that  the  defendant  made  a  mortgage  to  the  plaintiff  to  secure 
a  note  not  negotiable ;  and  subsequently  a  creditor  of  the 
plaintiff  summoned  the  defendant  in  a  trustee  process  against 
the  plaintiff,  recovered  judgment  against  the  defendant,  and 
committed  him  on  execution,  but  afterwards  gave  him  a  re- 
lease of  the  judgment     In  an  ejectment  upon  the  mortgage, 

1  Davis  V.  Maynard,  9  Mass.  242.  ^  Rochester  v.  Whitehouse,  15  N.  H. 

2  Hyiies  V.  Rogers,  6  Litt.  229.  468. 

*  7  Mass.  63. 


490  THE  LAW  OF  MORTGAGES.  [CH.  XVII. 

held,  the  facts  above  stated  were  no  defence  to  the  action. 
And  the  same  principle  has  been  applied,  even  where  the 
mortgagor  has  paid  the  amount  of  the  mortgage  debt  under 
the  trustee  process,  but  as  due  to  a  third  person,  the  mort- 
gagee not  being  party  to  the  suit.  Thus  A.  brought  his  bill 
against  B.,  to  foreclose  a  mortgage.  Pending  the  proceed- 
ing, B.  was  garnished  as  the  debtor  of  C,  and  judgment  ren- 
dered against  him  as  garnishee  of  the  mortgage  debt,  on  the 
ground  that  C.  was  in  fact  the  owner  of  the  mortgage,  and 
that  it  was  held  by  A.  in  fraud  of  the  creditors  of  C.  B. 
paid  the  judgment.  Held,  such  payment  was  no  defence,  as 
the  Court  had  no  authority  to  render  such  judgment  against 
him  as  garnishee,  A.  not  being  a  party  to  the  proceeding, 
and  having  no  opportunity  to  defend  his  rights.^  So  the 
commitment  of  the  mortgagor  by  the  mortgagee  himself,  in  a 
suit  upon  the  debt,  does  not  extinguish  the  mortgage.^ 

9.  We  have  seen  that  proceedings  against  the  person  of 
the  mortgagor  do  not  discharge  the  mortgage.  The  question 
often  arises,  whether  legal  and  judicial  proceedings  in  refer- 
ence to  the  mortgaged  property  itself,  either  between  the 
parties,  or  in  connection  with  third  persons,  operate  as  a 
constructive  extinguishment.  Upon  this  subject  it  has  been 
held,  that,  in  general,  the  release  of  a  judgment  recovered  for 
the  mortgage  debt  discharges  the  mortgage.^  But  where  a 
mortgagee  recovers  judgment  upon  the  mortgage  debt,  takes 
out  execution,  and  gives  a  receipt,  acknowledging  full  satis- 
faction thereupon  ;  these  facts  do  not  show  conclusively  a 
payment  ami  discharge  of  the  mortgage.  Thus,  where  the 
debtor,  the  ilay  before  taking  such  receipt,  conveyed  his  estate 
to  a  third  person,  who,  on  the  following  day,  transferred  it  to 
the  mortgagee  ;  held,  the  satisfaction  of  the  judgment  must 
be  construed  as  designed  merely  to  confirm  the  mortgagee's 
title ;  the  supposition  of  any  payment  of  money  involving 
the  absurdity,  that  either  the  mortgagor  or  his  grantee  released 
all  title  to  the  land,  at  the  very  moment  when  the  money  to 

'  Lawrence  v.  Lane,  4  Oilman,  354.        ^  Porter  v.  Perkins,  5  Mass.  237. 
2  Davis  V.  Battine,  2  K.  &  My.  76. 


CH.  xvil]  payment,  release,  etc.  491 

redeem  the  land  was  paid  to  the  party  taking  the  release.^ 
So  the  recovery  of  a  judgment  upon  one  of  two  mortgage 
notes  is  no  waiver  or  abandonment  of  the  mortgage  for  that 
amount,  unless  the  premises  are  taken  in  execution  ;  and  if 
they  are  so  taken,  but,  by  the  interposition  of  a  prior  equity, 
the  plaintiff  is  compelled  to  abandon  his  levy,  his  rights  are 
the  same  as  if  no  levy  had  been  made.^  So  a  wife  was  bound 
in  solido  with  her  husband  in  a  mortgage  to  secure  a  sub- 
scription to  a  railroad  company,  to  which  mortgage  the  State 
was  subrogated.  The  State  afterwards  caused  the  property 
to  be  sold  under  execution  against  the  husband,  as  a  default- 
ing tax-collector,  and  the  wife,  through  a  third  person,  be- 
came the  purchaser.  Held,  the  sale  did  not  extinguish  the 
mortgage.^  (A) 

10.  A  mortgage  is  not  extinguished  by  the  mortgagee's 
making  the  mortgagor  his  executor,*  nor  by  the  appointment 
of  the  mortgagor  as  administrator  of  the  mortgagee.  Thus, 
in  the  case  of  Kinney  v.  Ensign,^  certain  land  having  been 
twice  mortgaged,  after  breach  of  condition,  the  mortgagor 
was  appointed  administrator  of  the  second  mortgagee,  and 
returned  an  inventory,  including  his  own  debt.  An  assignee 
of  the  prior  mortgage  purchased  the  mortgagor's  right  of 
redemption.  Held,  in  a  bill  to  redeem,  brought  by  the  mort- 
gagor against  such  assignee,  that  the  taking  out  of  adminis- 
tration was  not,  in  reference  to  the  defendant,  a  payment  and 
extinguishment  of  the  second  mortgage,  but  the  plaintiff  was 

1  Perkins    v.   Pitts,    11   Mass.   125.        ^  Hawkins   v.   McVae,  14  La.  An. 
See>/?-a,  §  18.  339. 

2  Applegate  v.  Mason,  13  Ind.  75.  *  Miller  i'.  Donaldson,  17  Ohio,  264. 

5  18  Pick.  232. 


(K)  In  Pennsylvania,  since  the  statute  of  April  11,  1835,  a  mortgage 
which  is  the  first  incumbrance  on  the  premises  is  not  discharged  by  a  sher- 
iff's sale,  under  a  judgment  for  taxes  subsequently  assessed.  Perry  v.  Brin- 
ton,  1  Harr.  202. 

Under  the  statute  of  Indiana,  a  mortgagee,  having  recovered  a  judgment 
for  his  debt,  may,  if  he  have  not  taken  out  an  execution,  proceed  to  fore- 
close his  mortgage.     Hensicker  v.  Lamborn,  13  Ind.  468. 


492  THE  LAW  OF  MORTGAGES.         [CH.  XVII. 

entitled  to  redeem.  Chief  Justice  Shaw  remarked  :  ^  —  "  The 
taking  of  administration  by  the  debtor  is  not  in  fact  or  in 
law,  to  all  purposes,  payment  of  the  debt.  As  between  the 
administrator  himself,  and  those  beneficially  interested  in  the 
estate,  he  is  held  to  account  for  it  as  a  debt  paid,  from  con- 
venience and  necessity,  because  the  administrator  cannot  sue 
himself,  and  cannot  collect  his  own  debt  in  any  other  mode 
than  by  crediting  it  in  his  administration  account.  The 
complainant  is  in  a  situation  to  do  just  what  any  other  ad- 
ministrator would  do,  as  if  he  were  not  himself  the  original 
mortgagor.  On  redemption,  he  will  be  put  into  possession 
of  the  estate  ;  but  he  will  hold  in  autre  droit ;  his  seisin  and 
possession  will  be  according  to  his  title,  and  that  will  be,  and 
will  appear  by  the  record  to  be,  in  his  representative  capacity. 
Then  there  are  express  statute  provisions,  that  the  estate 
recovered  shall  be  held  to  the  use  of  the  heirs  of  the  intestate 
mortgagee,  and  the  administrator  shall  have  a  license  to  sell, 
if  necessary  for  the  payment  of  debts."  So  A.  conveyed 
land  to  his  children,  and  afterwards,  but  before  registration 
of  the  deed,  mortgaged  it  to  B.,  to  secure  a  note,  and  died 
intestate,  leaving  personal  estate,  after  satisfaction  of  the 
widow,  not  equal  to  the  note.  C,  one  of  the  children,  be- 
came administrator,  paid  the  note  from  his  own  money,  and 
took  an  assignment  of  it,  with  a  conveyance  of  the  land. 
He  afterwards  transferred  the  note  and  the  property  to  D., 
who  brings  a  bill  to  foreclose  against  the  heirs  of  A.  Held, 
the  transaction  was  not  a  payment  by  C,  as  administrator, 
but  a  purchase  of  the  mortgage  debt  by  him,  on  his  own 
account,  and  the  plaintiff  was  therefore  entitled  to  foreclose.''^ 
So  one  Squires,  having  made  a  note  to  Lothrop,  gave  him 
a  mortgage  as  security,  having  previously  made  a  deed  to 
his  children,  which  was  not  recorded  till  after  the  mortgage. 
Under  this  conveyance,  the  defendants  claimed  a  portion  of 
the  land  mortgaged.  The  plaintiff,  as  assignee  of  the  mort- 
gage, brings  a  bill  to  foreclose.     It  appeared  that  his  title  was 

1  18  Pick.  23G,  237.  2  De  Forest  v.  Hough,  13  Conn.  472. 


CH.  XVII.]  PAYMENT,    RELEASE,    ETC.  493 

derived  in  part  through  a  son  of  the  mortgagor,  who,  at  the 
time  of  paying  the  debt,  and  taking  an  assignment  of  the 
mortgage,  was  also  an  administrator  upon  the  estate  of  the 
mortgagor,  deceased  ;  but  the  payment  was  made  from  the 
administrator's  own  funds,  and  the  land  transferred  to  him 
by  the  mortgagee.  Held,  the  plaintiff  might  maintain  a  bill 
for  foreclosure  against  the  other  children  of  the  mortgagor, 
the  mortgage  not  being  extinguished  by  the  payment  and 
transfer  above  stated.^ 

11.  The  question  sometimes  arises,  whether  a  deposit  of 
the  amount  of  the  mortgage  debt  will  operate  as  payment. 
Thus  a  mortgagor  sold  the  land,  received  therefor  the  pur- 
chaser's note,  and  agreed  to  extinguish  the  mortgage.  He 
then  delivered  the  note  to  the  mortgagee,  with  an  agreement 
that  the  proceeds,  when  received,  should  go  in  payment  of 
the  mortgage.  He  also  deposited  with  the  mortgagee  the 
amount  of  the  mortgage  debt,  in  order  to  stop  the  interest, 
but  with  an  agreement  that  it  should  not  go  to  pay  the  mort- 
gage. The  mortgagee  gave  a  receipt  for  the  money,  and  re- 
tained the  mortgage  and  the  purchaser's  note.  This  note  was 
not  paid.  Held,  the  facts  above  stated  did  not  show  a  pay- 
ment of  the  mortgage,  inasmuch  as  it  was  agreed  by  the  par- 
ties, at  the  time  the  money  was  deposited,  that  it  should  not 
discharge  the  mortgage.^  But  where  the  solicitor  of  a  mort- 
gagee refused  to  receive  from  the  mortgagor  a  partial  pay- 
ment on  the  mortgage,  as  a  payment  to  stop  interest,  but 
consented  to  receive  it  as  a  deposit,  with  the  understanding, 
that,  if  the  mortgagee  would  take  it  as  payment  and  allow 
interest,  it  should  be  indorsed  on  the  mortgage  ;  and  the 
mortgagee  refused  to  receive  the  money,  unless  the  whole 
debt  was  paid ;  but  the  solicitor  afterwards  handed  it  to  him, 
with  the  understanding  that  he  was  not  to  allow  interest,  till 
payment  of  the  balance,  of  which  the  mortgagor  had  notice, 
and  assented  thereto ;  and  the  mortgagee,  on  receiving  the 
money,   used  it    as  his  own  :    held,   the    money    should  be 

1  Hough  V.  De  Forest,  13  Conn.  473.  ^  Howe  v.  Lewis,  14  Pick.  329. 

VOL.  I.  42 


491  THE    LAW    OF    MORTGAGES.  [CH.  XVII. 

applied  as  payment,  at  the  time  it  was  received  and  used  by 
the  mortgagee.^  So  where  a  mortgagor,  after  the  mortgage 
debt  became  due,  delivered  to  the  mortgagee  $1,000,  which, 
after  being  retained  for  a  few  days,  was  returned  to  the  mort- 
gagor at  his  solicitation,  and  not  indorsed  upon  the  mortgage  ; 
held,  a  payment  on  the  mortgage,  and  that  the  redelivery  did 
not,  as  against  creditors,  revive  the  mortgage.^ 

12.  Though  a  mortgagee  give  up  the  mortgage  note  to  be 
cancelled,  the  inquiry  is  still  "  open,  whether  this  was  a  pay- 
ment of  the  note,  or  a  mere  release  from  personal  liability  on 
the  note,  independent  of  the  lien  on  the  land.    If  the  debt  was 
not  in  fact  paid,  and  the  land  was  still  to  be  charged  with  the 
same  by  the  arrangement  of  the  parties  to  this  settlement 
the  mere  giving  up  of  the  note  would  not  discharge  the  mort- 
gage." ^  So  a  surrender  of  the  mortgage  note  to  the  mortgagor, 
in  consideration  of  a  release  of  the  equity  of  redemption,  will 
not  necessarily  operate  as  a  payment  of  such  note  in  refer- 
ence to  a  second  mortgagee.     Thus,  where  a  mortgagor  re- 
leased his  equity  of  redemption  to  the  former  of  two  mort- 
gagees, who  in  consideration  thereof  gave  up  his  mortgage 
note  ;  held,  the  second  mortgagee  could  not  foreclose  with- 
out paying  the  first  mortgage.*     Swift,  C.  J.,  says,^  (three 
Judges  dissenting,)    "  The  operation  of  this  transaction  is 
merely  the  taking  of  the  pledge  for  the  debt.     This  is  no 
more  than  adjusting  the  claims  between  the  first  mortgagee 
and  the  man  who  has  the  ultimate  equity  of  redemption ;  it 
is  only  relinquishing  the  legal  remedy  on  the  note ;  it  is  no 
payment  of  it.     There  must  be  a  payment  of  the  debt  by 
something  besides  the  thing  pledged  to  secure  it  ;  otherwise 
there  is  no  satisfaction  of  the  mortgage."     So,  where  a  mort- 
gagee consented  to  a  sale  by  the  mortgagor,  and  the  purchaser 
gave  his  notes  for  the  purchase-money,  secured  by  a  mortgage 
upon  the  premises,  and  the  first  mortgagee  received  an  assign- 
ment of  a  part  of  such  notes  in  payment  of  his  debt ;  held, 


'  Toll  c.  HlUer,  11  Paige,  228. 
'^  Marvin  v.  Vedder,  5  Cow.  G71. 
*  Per  Dewey,  J.,  Hemcnway  v.  B 


"  Baldwin  v,  Norton,  2  Conn.  101. 
5  Ibid.  p.  163. 
k  ay  V.  Bas- 
sett,  13  Gray,  380. 


CH.  XVII.]  PAYMENT,   RELEASE,    ETC.  405 

the  rights  of  the  first  mortgage  were  not  simply  those  of  an 
assignee  of  the  second  mortgage  notes,  and,  in  receiving 
them,  he  did  not  relinquish  his  right  to  prior  satisfaction  out 
of  the  property.^  So,  where  a  mortgagor  suffers  the  mort- 
gaged premises  to  be  sold  for  taxes,  and  buys  them  in,  he 
does  not  thereby  defeat  the  lien  of  the  mortgage,  but  his  pur- 
chase is  merely  a  payment  of  the  taxes  by  him.^ 

13.  In  qualification  of  the  general  rule,  that  a  mortgage 
will  be  extinguished  only  by  payment,  not  by  mere  change 
of  the  evidence  of  debt,  it  is  to  be  remarked,  that,  where  the 
particular  facts  of  the  case  itself,  or  any  other  transaction  be- 
tween the  parties,  indicate  their  intention  and  understand- 
ing, that  the  substitution  of  a  new  security  shall  operate  as 
payment  of  the  old  debt,  (i)  and  there  is  no  useful  or  equi- 
table object  to  be  effected  by  an  opposite  construction  ;  the 
mortgage  is  held  to  be  extinguished,  though  not  in  form  dis- 
charged or  cancelled.  It  is  said,  that  the  mortgage  is  ex- 
tinguished by  payment /rom  the  debtor'' s  funds?  And  where 
the  mortgage  debt  is  paid,  the  mortgage  cannot  be  kept  alive 
by  a  parol  agreement,  as  security  for  another  debt."^  Thus,  in 
the  case  of  Fowler  v.  Bush,^  a  note  payable  by  instalments 
was  secured  by  mortgage.  After  the  first  instalment  became 
due,  the  holder,  being  an  assignee  of  the  mortgage,  demanded 

1  Bank,  &c.  v.  Tarleton,  23  Miss.  173.  *  Mead  v.  York,  2  Seld.  449. 

2  Frye  v.  Bank,  &c.,  11  111.  867.  ^  21  Pick.  230. 

3  Kinley  v.  Hill,  4  Watts  &  S.  426. 
See  DeVendal  v.  Malone,  25  Ala.  272. 


{i)  The  question  of  intention,  as  in  other  like  cases,  is  for  the  jury.  Thus, 
if  a  mortgagor  give,  to  an  assignee  of  the  mortgage,  notes  secured  by  another 
mortgage,  for  the  amount  paid  by  the  assignee  ;  wliether  this  is  payment  or 
only  additional  security,  is  a  question  of  fact.  Collamer  v.  Langdon,  3  Wms. 
32. 

Pending  a  bill  to  foreclose  a  mortgage,  an  assignment  of  a  judgment  was 
received  by  the  attorney  of  the  complainant  from  the  debtor,  in  part-pay- 
ment. There  was  no  evidence  that  it  had  not  been  realized,  and  the  com- 
plainant continued  to  retain  the  same  attorney  after  he  must  have  known 
of  such  assignment.  Held,  a  ratification  and  adoption  of  the  attorney's  act 
in  receiving  it.     Byers  v.  Fowler,  14  Ark.  86. 


496  THE  LAW  OF  MORTGAGES.  [CH.  XVII. 

payment,  saying  that  if  that  instalment  were  paid,  he  could 
sell  the  securities.  The  mortgagor  thereupon  gave  him  a 
note  on  time,  payable  to  order,  for  the  sum  due,  which  the 
holder  proposed  to  have  discounted  at  a  bank;  and  at  the 
same  time  indorsed  on  the  former  note  —  "  Received  the  first 
instalment  on  the  within,"  naming  the  sum.  In  an  action 
upon  the  mortgage  by  a  subsequent  assignee  against  the 
mortgagor,  it  was  held,  that  these  facts  constituted  a  pay- 
ment of  the  first  instalment,  and  not  merely  a  change  of 
security,  and  that  the  mortgage  was  pro  tanto  discharged. 
So  one  Temple  mortgaged  land  to  Bailey,  the  defendant, 
to  secure  several  notes  payable  at  different  times,  and  after- 
wards mortgaged  the  same  land  to  Holman,  the  plaintiff. 
Subsequently,  and  before  maturity  of  either  of  the  notes, 
Temple  gave  the  defendant  a  warranty  deed  of  the  premises, 
in  full  satisfaction  and  discharge  of  these  notes  and  another 
one.  The  notes  were  given  up,  but  the  mortgage  was  not 
discharged.  Upon  a  bill  in  equity  to  redeem,  brought  by 
Holman  against  Bailey,  it  was  held,  that  payment  of  the 
notes  before  maturity  was  as  effectual  to  defeat  the  defend- 
ant's mortgage,  as  if  made  at  the  time  they  became  due; 
that  if  the  plaintiff's  mortgage  was  valid,  he  had  a  complete 
and  adequate  remedy  at  law  against  the  defendant,  by  writ 
of  entry ;  and  that  the  bill  could  not  be  sustained.^  So  in 
the  case  of  Abbott  v.  Upton,^  J.  Upton  gave  to  Brighara  a 
mortgage,  dated  December  20,  1832,  conditioned  to  secure  a 
note  for  $400,  payable  to  Smith,  signed  by  Upton  as  princi- 
pal, and  Brigham  as  surety,  or  indemnify  Brigham  therefrom. 
On  the  6th  of  February,  1834,  the  plaintiff,  with  one  Day,  at 
the  request  of  Upton,  took  up  the  note,  and  gave  a  new  one 
for  §404,  signed  by  Upton,  Day,  and  the  plaintiff,  payable  to 
Smith  in  one  year,  with  interest.  At  the  same  time,  Brig- 
ham, by  a  writing  not  under  seal,  assigned  the  mortgage  to 
Day  and  the  plaintiff,  and  the  mortgage  and  the  note  secured 
by  it,  which  appeared  to  be  cancelled,  were  passed  to  the 

'  Jlolman  v.  Bailey,  3  Met.  55.  2  jg  pi^k.  434. 


CH.  XVII.]  PAYMENT,   RELEASE,   ETC.  497 

plaintiff.  August  11, 1836,  Brigham  duly  assigned  th'e  mort- 
gage to  Day  and  the  plaintiff,  and,  on  the  27th  of  August? 
Day  assigned  his  interest  therein  to  the  plaintiff.  On  the  6th 
of  February,  1834,  Upton  gave  to  Day  and  the  plaintiff  a 
mortgage  of  personal  property,  to  secure  them  against  their 
liability  on  the  note  signed  by  them.  After  this  became  ab- 
solute. Day  and  the  plaintiff  took  possession  of  the  property, 
which,  in  the  opinion  of  Upton,  was  worth  from  $500  to 
$600.  July  8,  1834,  Upton  conveyed  the  demanded  prem- 
ises to  the  defendant,  N.  Upton.  A  verdict  was  taken  for  the 
plaintiff,  subject  to  the  opinion  of  the  Court.  The  plaintiff 
offered  to  discharge  the  personal  property,  upon  satisfaction 
of  the  judgment  in  this  case,  if  he  should  prevail.  It  was  held 
by  the  Court,  that  when  the  note  to  Smith  was  paid  and  dis- 
charged, Brigham  was  fully  indemnified,  and  the  condition 
of  the  mortgage  saved  ;  and  that  when  J.  Upton  gave  a  new 
note,  for  a  different  sum,  with  other  sureties,  and  other  secur- 
ity to  indemnify  them,  Brigham's  interest  in  the  land  ceased, 
and  nothing  remained  to  pass  by  his  assignment.  So  A. 
gave  a  mortgage  to  B.,  to  indemnify  B.  in  case  he  should 
have  to  pay  the  debt  of  A.,  conditioned  that  if  A.  should  pay 
and  satisfy  his  note,  by  renewal  or  otherwise,  then  to  be  void. 

A.  renewed  his  note  with  different  securities,  and  B.  assigned 
the  mortgage  to  them.  Held,  the  assignment  did  not  cut  off 
the  intervening  rights  of  other  mortgagees,  and  the  rights  of 

B.  ceased  upon  the  renewal,  a  transfer  to  others  not  having 
existed  in  contemplation  of  the  parties,  at  the  time  of  the 
execution  of  the  mortgage.^  So  a  mortgagor  paid  and  took 
up  the  mortgage  note,  and  the  next  day  redelivered  it,  taking 
back  part  of  the  amount  paid,  and  the  balance  bging  indorsed 
upon  the  note  ;  with  an  agreement  that  the  mortgage  should 
continue  to  be  security  for  the  sum  left  due,  and  for  a  collat- 

'  eral  liability.  A  creditor,  without  notice,  having  levied  an 
I  execution  upon  the  land ;  held,  his  title  should  prevail  over 
I  that  of  the  mortgagee.^     So,  on  September  15, 1813,  a  mort- 

^  Bonham  v.  Galloway,  13  111.  68.  ^  Bowman  v.  Manter,  33  N.  H.  630. 

42* 


498  THE   LAW    OF   MORTGAGES.  [CH.  XVII. 

gage  wfts  given  as  security  for  the  indorsement  of  a  note 
dated  July  27, 1813,  for  $400,  payable  ninety  days  after  date 
at  the  Middletown  Bank,  and  there  discounted  for  the  mak- 
er's accommodation.  "When  that  note  fell  due,  it  was  taken 
up,  the  indorser  paying  $83,  and  a  new  note,  with  the  same ' 
names,  given  for  the  balance.  September  3,  1814,  the  land 
was  mortgaged  to  another  person.  September  6,  1814,  the 
first  mortgagee  indorsed  a  note  for  $110,  part  of  the  original 
debt  of  $400  at  the  bank,  which  he  was  afterwards  obliged 
to  pay.  Held,  the  indemnity  secured  by  the  first  mortgage 
being  precisely  coextensive  with  the  liability  of  the  mortgagee 
as  indorser,  his  lien  extended  only  to  the  first  note,  and,  as  to 
subsequent  advancements,  he  was  only  a  general  creditor.^ 
Hosmer,  C.  J.,  says:^  —  "The  condition  provided,  that,  'if 
the  said  Curtiss  should  pay  the  said  note,  and  indemnify  the 
said  Goodrich  from  his  said  indorsement,  the  deed  should  be 
void.'  The  specific  contract  referred  alone  to  a  note  dated 
the  27th  of  July,  1813.  By  the  non-payment  of  this  note 
Goodrich  might  be  damnified,  and  precisely  coextensive  with 
the  possible  damage  was  the  contract  of  indemnity.  The 
debt  he  never  guaranteed,  except  through  his  indorsement ; 
which  contract  would  be  extinguished  so  soon  as  the  note 
was  paid,  or  another,  with  the  consent  of  the  holder,  was 
substituted  for  it.  When  Goodrich  indorsed  the  above  note, 
he  had  no  idea  of  indorsing  another,  or  of  continuing  his 
responsibility  beyond  his  actual  contract.  The  indorsement 
of  the  subsequent  notes,  therefore,  was  the  result  of  a  subse- 
quent contract."  (j) 

1  Peters  v.  Goodrich,  3  Conn.  146,  (overruled  in  14  Conn.  334. 
^  Ibid.  loQ, 


(j)  On  the  other  hand,  Chapman,  J.,  (dissenting,)  says  (Ibid.  154):  — 
"Nothing  but  a  strict  performance  of  this  condition  could  prevent  the  legal 
estate  from  vesting  in  the  defendant.  It  is  admitted  that  the  condition  was 
not  performed.  The  legal  title  is  in  the  defendant,  and  the  object  of  this 
bill  is  to  divest  him  of  it.  This  the  plaintiff  is  entitled  to  do,  provided  he  can 
show  that  the  defendant  has  been  indemnified. 


CH.  XVII.]  PAYMENT,   RELEASE,   ETC.  499 

14.  If  the  mortgagee  takes,  for  the  amount  due  on  the 
mortgage,  the  note  of  an  assignee  of  the  mortgagor,  includ- 
ing annual  interest,  and  gives  up  to  the  assignee  the  mort- 
gagor's notes  ;  this  is  not,  unexplained,  a  mere  renewal,  but 
the  substitution  of  a  new  security,  and  such  a  payment 
as  discharges  the  mortgage.^  So  where,  in  case  of  a  pur- 
chase of  land  by  three  persons,  each  giving  a  bond  for  his 
share  of  the  price,  secured  by  a  joint  mortgage,- the  vendor 
afterwards  gave  up  one  of  the  bonds,  without  the  consent 
of  the  other  obligors,  taking  a  different  security ;  held,  the 
others  were  mere  sureties  for  this  obligor,  and  were  dis- 
charged, as  to  him,  by  this  proceeding.^  So  where  a  mort- 
gagee released  to  two  tenants  in  common,  and  took  a  mort- 
gage from  one  who  had  bought  the  other's  interest,  for  a  less 
sum  and  at  a  different  rate  of  interest,  the  mortgage  was 
held  subject  to  intervening  liens.^ 

15.  And  a  mortgage  may  be  extinguished  by  the  laches 
of  the  mortgagee  in  enforcing  a  new  or  substituted  security. 
Thus  a  mortgagor  sold  the  land,  agreeing  to  remove  the 
incumbrance.  It  was  also  agreed  between  him  and  the 
mortgagee,  that  the  latter  should  take  a  new  note  and  an- 
other mortgage  for  his  debt,  and   not  enforce  the  former 

1  Hadlock   v.   Bulfinch,   31   Maine,        ^  Dingman  v.  Randall,  13  Cal.  512. 
246. 

2  Van  Rensselaer  v.  Akin,  22  Wend. 
549. 


indemnify  the  defendant  in  all  respects.  Has  the  mortgagor  ever  paid  the 
note  of  $400?  No.  Has  he  indemnified  the  first  mortgagee  ?  No  ;  but  the 
first  mortgagee  has  indorsed  a  second  note,  which  was  given  for  a  part  of  the 
original  note,  and  therefore  in  equity  he  has  lost  his  Hen.  The  whole  argu- 
ment proceeds  upon  a  fallacy.  The  note  is  but  evidence  of  the  debt.  The 
renewal  of  a  note  is  no  payment  of  the  debt.  It  is  an  unvarying  rule  in  a 
Court  of  Chancery,  never  to  divest  one  of  a  legal  estate,  so  long  as  he  can 
show  an  equitable  Hen  on  it.  Should  the  first  mortgagee,  after  forfeiture, 
receive  payment  in  counterfeit  money  and  give  a  receipt  in  full  for  it,  the 
second  mortgagee  could  not  redeem,  without  paying  the  whole  debt,  unless 
the  first  mortgagee  had  released.  The  same  rule  applies  to  any  mistakes  in 
a  settlement."     Brainard,  J.,  concurred. 


500  THE    LAW    OF    MORTGAGES.  [CH.    XVII. 

mortgage,  if  the  property  included  in  the  latter  was  suffi- 
cient to  pay  the  debt.  The  property  was  thus  sufficient, 
but,  in  consequence  of  the  mortgagee's  delaying  for  sixteen 
months  to  record  the  new  mortgage,  it  was  lost  to  him  by 
other  deeds  and  mortgages  from  the  mortgagor.  Held,  the 
first  mortgage  was  discharged.^ 

16.  More  especially,  where  a  different  construction  would 
injuriously  affect  the  rights  of  third  persons,  a  mortgage  will 
be  held  not  to  continue  in  force  as  security  for  a  substituted 
personal  claim.  Thus,  in  case  of  a  mortgage  to  secure  the 
mortgagee  for  an  indorsement  of  the  mortgagor's  note,  the 
note  was  paid  when  due,  but  the  mortgage  afterwards  as- 
signed, for  valuable  consideration,  with  the  assent  of  the 
mortgagor.  Previous  to  the  assignment,  the  mortgagor, 
made  another  mortgage,  which  was  also  assigned,  and  the 
mortgage  and  assignment  recorded  before  the  assignment  of 
the  former  mortgage.  Held,  after  satisfaction  of  the  first 
mortgage,  the  parties  might  revive  the  security  as  between 
themselves,  and  also  as  against  themselves  in  the  hands  of 
an  assignee,  but  not  as  against  third  persons ;  and,  as  the 
second  mortgage  and  the  assignment  of  it  were  both  re- 
corded before,  the  assignment  of  the  first,  the  holder  of  the 
first  was  affected  by  notice,  and  was  not  entitled  to  protec- 
tion, as  against  a  latent  equity.^  So  one  of  two  mortgagors, 
having  assumed  the  mortgage  debt,  executed  a  new  mort- 
gage to  secure  it,  and  an  individual  debt  of  his  own,  the 
mortgagee  holding  the  old  mortgage  as  collateral  security. 
The  mortgagor  assigned  his  property,  afterwards,  for  benefit 
of  creditors,  and  the  premises  were  sold  by  his  assignees, 
free  from  all  incumbrances.  The  purchaser  and  the  mort- 
gagee arranged  with  the  assignees,  so  that  the  purchaser 
secured  the  money  due  on  the  second  mortgage  to  the  mort- 
gagee, who  assigned  the  old  mortgage  to  the  purchaser,  who 
brings  a  bill  for  foreclosure.  Held,  the  securing  of  the  debt 
by  the  purchaser  was  a  satisfaction  of  the  mortgage,  which 
became  functus  officio^  and  incapable  of  transfer  as  a  subsist- 

1  Teaff  V.  Ross,  1  Ohio,  St.  469.  -  Purser  v.  Anderson,  4  Ed.  Ch.  17. 


CII.   XVII.]  PAYMENT,   RELEASE,   ETC.  '501 

ing  security.^  So,  A.  having  given  a  mortgage  to  B.,  A.  and 
B.'s  agent  agreed  to  convey  to  C,  on  his  securing  the  mort- 
gage debt.  C.  gave  to  a  succeeding  agent  of  B.  a  deed  of 
trust  of  slaves,  to  secure  the  mortgage  and  other  debts. 
Held,  the  mortgage  was  discharged.^  So  A.  conveyed  to  B. 
and  C,  taking  back  a  bond  of  defeasance.  Afterwards,  for 
the  purpose  of  enabling  A.  to  pay  B.  and  C,  A.  surrendered 
to  them  their  bond,  and  they  conveyed  to  D.,  to  whom  A. 
also  conveyed  his  remaining  interest  ;  and  thereupon  D. 
advanced  a  certain  sum,  in  satisfaction  of  the  amount  mu- 
tually estimated  by  A.  and  B.  and  C.  to  be  due  to  the  latter, 
and  D.  at  the  same  time  executed  a  bond  of  defeasance  to 
A.  Held,  although  this  amount  was  less  than  the  sum  actu- 
ally due  to  B.  and  C,  yet  their  mortgage  was  discharged.^ 

17.  We  have  seen,  (§  10,)  that,  under  some  circumstances, 
the  death  of  the  mortgagor,  and  the  proceedings  connected 
with  a  settlement  of  his  estate,  will  not  operate  as  payment. 
There  are  cases,  however,  where  a  mortgage  may  be  extin- 
guished by  the  relative  position  of  the  mortgagor  or  mort- 
gagee, and  the  representatives  of  one  or  the  other  of  these 
parties,  after  his  death  ;  and  by  the  legal  proceedings  con- 
nected therewith.  Thus  a  mortgage  was  made  to  the  father 
of  the  mortgagor,  as  security  for  a  bond.  Before  breach  of 
condition,  the  mortgagee  died,  having  appointed  his  son  to 
be  his  executor.  The  son  then  mortgaged  anew,  with  the 
usual  covenants  against  incumbrances  and  for  waiTanty, 
and  the  second  mortgagee  assigned  his  mortgage.  Subse- 
quently, the  son,  as  executor,  assigned  the  mortgage  of  his 
father,  with  the  bond.  The  assignee  of  these  securities  re- 
covered possession  in  a  suit  against  the  son  as  mortgagor; 
and  the  former  assignee  brings  the  present  action  for  the 
land  against  the  plaintiff  in  the  other  suit.  It  was  held,  that 
the  action  should  be  maintained,  because,  whether  the  ap- 
pointment of  the  son  as  executor  extinguished  the  mortgage 
given  by  him  or  not,  it  was  certainly  extinguished  by  his 

1  McGiven  v.  Wheelock,  7  Barb.  22.        ^  Hodgman  v.  Hitchcock,  15  Verm. 

2  Towler  v.  Buchannans,  1  Call,  187.     374. 


502'  THE   LAW    OF   MORTGAGES.  [CH.    XVII. 

second  mortgage,  which  conveyed  the  land  as  discharged  of 
all  incumbrances.^  So,  in  case  of  a  mortgage  to  secure  a 
bond,  the  mortgagee  having  died,  the  mortgagor  was  ap- 
pointed his  administrator,  and  returned  an  inventory,  includ- 
ing the  bond  debt.  He  afterwards  settled  his  first  account, 
charging  himself  with  the  amount  of  personal  estate  returned 
in  the  inventory ;  and  a  second  account,  charging  himself 
with  the  balance  of  the  first.  Thereupon  the  Probate  Court 
passed  a  decree,  ordering  a  distribution  of  the  balance  among 
the  heirs.  Held,  by  these  proceedings  the  bond  debt  was  paid, 
and  no  title  to  the  land  passed  by  a  subsequent  assignment 
of  the  bond  and  mortgage  by  the  administrator.^  So  a  sale, 
under  order  of  the  Orphans'  Court,  for  payment  of  debts 
of  an  intestate,  of  lands  mortgaged  by  a  former  owner,  on 
which  the  intestate  paid  the  interest,  discharges  the  mort- 
gage.^ So,  where  a  mortgage  debt  is  discharged  by  a  bond 
of  the  heirs,  who  are  also  assignees  of  the  mortgage,  to  pre- 
vent a  sale  of  the  land  ;  the  mortgage  is  also  discharged.* 
So  although,  where  the  owner  of  land,  subject  to  mortgage 
given  in  trust  for  certain  heirs,  is  appointed  trustee  of  the 
heirs,  thereby  acquiring  a  legal  title  to  the  mortgage,  the 
mortgage  is  not  thereby  merged ;  yet,  if  he  afterwards  con- 
vey with  warranty,  he  will  be  estopped  by  his  covenants  to 
enforce  the  mortgage  against  the  purchaser  for  his  own  ben- 
efit, though  nothing  but  actual  payment  can  deprive  the 
heirs  of  their  right  in  the  mortgage.  Such  payment  will  ex- 
tinguish the  mortgage,  both  in  law  and  equity,  unless  the 
trustee  misapply  the  money  with  the  grantee's  knowledge 
and  consent.  And  unless  it  have  been  thus  misapplied,  the 
law  will  apply  it  to  the  mortgage.  If  the  conveyance,  made 
subject  to  the  mortgage  in  trust,  contains  an  agreement  on 
the  part  of  the  grantor  to  pay  all  incumbrances,  and  a  part 
of  the  price  is  retained  to  await  such  payment;  the  grantor, 
subsequently  becoming  trustee  and  thus  entitled  to  the  mort- 

1  Hilcliie  V.  Williams,  11  Mass.  50.  *  Robinson  v.  Leavitt,  7  N.  H.  73; 

^  Ipswich,  &c.  1-.  Story,  5  Met.  310.      Richardson,  Cli.  J.,  dissenting. 
*  Moore  v.  Sliultz,  13  Tena.  98. 


CH.   XVII.]  PAYMENT,    RELEASE,   ETC.  503 

gage,  is  bound  to  apply  the  money  thus  retained  to  the  mort- 
gage.i 

18.  We  have  already  (§  8)  referred  to  the  cases,  in  which 
the  lien  of  a  mortgage  is  not  affected  by  legal  or  judicial 
proceedings  connected  therewith.  With  reference  to  the 
effect  of  a  judgment  or  decree,  in  a  suit  upon  a  mortgage, 
on  the  mortgage  itself;  it  is  held,  that  a  mortgagee,  entering 
under  a  writ  of  possession,  holds  under  his  mortgage  title,  not 
under  such  writ.  Hence,  notwithstanding  a  release  of  the 
judgment,  the  mortgage  will  be  foreclosed  by  his  remaining 
in  possession  for  the  statutory  period,  unless  he  intended  to 
waive  his  title  as  mortgagee,  which,  in  case  of  conflicting 
evidence,  is  a  question  of  fact  for  the  jury.^  But,  on  the 
other  hand,  it  is  held,  that  a  decree  enforcing  a  mortgage  is 
a  destruction  or  satisfaction  of  the  mortgage.^  Thus,  where 
a  mortgage  stipulated  that,  upon  default,  it  should  only  be 
necessary  for  the  mortgagee  to  apply  for  an  order  to  sell  the 
mortgaged  premises ;  such  order  merges  the  mortgage,  so 
that  it  can  no  longer  be  made  the  foundation  of  a  suit,  and 
any  further  proceedings  to  enforce  the  lien  must  be  founded 
upon  the  order.^  And  by  other  judicial  proceedings  a  mort- 
gage is  often  extinguished.  As  where  the  property  is  sold 
on  execution  against  the  mortgagee,  and  bought  by  him  at 
a  nominal  price.^  So  it  is  held,  (in  Pennsylvania,)  that  a 
sheriff's  sale  of  mortgaged  premises,  upon  a  judgment  for 
interest  due  on  the  mortgage  debt,  the  debt  not  being  due, 
operates  as  a  foreclosure,  extinguishes  the  equity  of  redemp- 
tion, transfers  the  mortgagor's  legal  estate,  and  divests  the 
lien  of  the  mortgage.  The  proceeds  are  brought  into  court, 
subject  to  such  lien,  and  belong  to  the  mortgagee  to  the 
extent  of  the  debt  and  interest,  in  preference  of  creditors 
whose  liens  intervene  between  the  mortgage  and  the  judg- 
ment.*^ So,  in  the  same  State,  where  a  mortgage  was  made 
to  secure  three  bonds,  payable  at  different  times,  and  judg- 

1  Hadley  v.  Chapin,  11  Paige,  245.  ^  Schnell  v.  Schroeder,  1  Bai.  Ch. 

2  Couch  V.  „Stevens,  37  N.  H.  169.  334. 

3  Manigault  v.  Deas,  1  Bai.  Ch.  283.*  «  West  Branch,  &c.  v.  Chester,  11 
*  Ayres  v.  Cayce,  10  Texas,  99.  Peiin.  (1  Jones,)  282.     See  Kinnaman 

V.  Henny,  2  Halst.  Ch.  90  626. 


50J:  THE    LAW   OF   MORTGAGES.  [CH.  XVII. 

ment  was  recovered  upon  the  first,  and  the  mortgaged  prem- 
ises sold  on  execution,  the  last  bond  not  being  due;  the 
mortgage  was  held  discharged.^  So  a  debtor,  whose  estate 
was  subject  to  an  attachment,  mortgaged  it  for  $3,200.  A 
part  of  the  estate  was  afterwards  set  off  on  execution,  in 
completion  of  the  attachment,  and  the  mortgagor  thereupon 
gave  the  mortgagee  his  note  for  $1,200,  secured  by  a  mort- 
gage of  personal  property.  The  mortgagee  afterwards  as- 
signed the  former  mortgage  for  $2,000,  and  the  assignee 
paid  the  amount  of  the  execution,  taking  a  conveyance 
from  the  judgment  creditor.  The  purchaser  of  the  equity 
of  redemption  brings  a  bill  to  redeem  against  the  assignee 
of  the  mortgage.  Held,  the  giving  of  the  note  and  sec- 
ond mortgage  was  a  payment  of  the  first  to  the  amount  of 
$1,200,  and  the  plaintiff  should  be  allowed  to  redeem  for 
$2,000  with  interest  from  the  time  of  assignment.^  So, 
in  sc.  fac.  against  A.  upon  a  mortgage,  B.,  a  party  interested, 
may  file  an  affidavit  of  defence,  which  is  a  sufficient  answer 
to  the  suit,  setting  forth  that  judgment  had  been  rendered  on 
the  mortgage  bond,  and  upon  execution  personal  property 
sold  to  an  amount  equal  to  the  debt,  &c.,  which  had  been 
paid  to  the  plaintifi"'s  attorney.^ 

19.  And  the  same  effect  has  been  given  to  legal  proceed- 
ings connected  with  the  mortgage,  where  the  question  ha3 
directly  arisen  upon  some  form-  of  personal  liability,  and  not 
upon  the  security  itself.  Thus  an  equity  of  redemption,  sold 
on  execution,  was  conveyed,  by  consent  of  the  purchaser,  to 
a  third  person,  he  agreeing  to  pay  the  purchase-money,  and 
the  purchaser  to  pay  the  mortgage.  The  latter  took  an 
assignment  of  the  mortgage,  with  the  note,  from  the  holder, 
who  wrote  satisfied  upon  the  face  of  the  mortgage.  The 
holder  of  the  note  then  brings  an  action  upon  it  against  the 
mortgagor.  Held,  the  action  could  not  be  maintained.*  So 
a  mortgagee  covenanted  with  a  third  person  to  foreclose 
the  mortgage  and  give  him  the  benefit  of  the  decree.     The 

»  Berger  v.  Hiester,  6  Wliart.  210.  '  «  Fraley  v.  Steinmetz,  22  Penn.  437. 
inn  ^"'*^"°  ^®"  ^^-  "•  ^^"g'  2  Cush.        *  Waddle  v.  Cureton,  2  Speers,  53. 


CH.    XVII.]  PAYMENT,    RELEASE,    ETC.  605 

equity  of  redemption  was  afterwards  sold  on  execution,  and 
the  covenantee  became  the  owner  of  it,  and  the  mortgagee 
released  to  him  his  title.  Held,  an  extinguishment  of  the 
covenant.^ 

20.  With  regard  to  the  application  or  appropriation  oi 
payments  made  by  the  mortgagor  to  the  mortgagee  ;  it  has 
been  held,  that  the  law  presumes  such  payment  to  be  made 
on  account  of  the  mortgage,  and  throws  the  burden  of  proof 
upon  those  who  allege  the  contrary.^  Thus,  if  a  creditor, 
holding  several  claims  against  his  debtor,  takes  from  him  a 
mortgage  made  to  the  debtor  by  a  third  person,  as  security 
for  one  of  the  claims,  which  mortgage  it  is  agreed  that  the 
debtor  shall  pay ;  and  he  afterwards  makes  a  payment,  to  be 
applied  to  the  debt  thus  secured  ;  such  payment  is  pro  tanto 
a  discharge  of  the  mortgage,  and  the  creditor  cannot  after- 
wards apply  it  to  the  other  claims,  and  enforce  the  mortgage 
in  fall  against  the  mortgagor.^  But,  after  such  payment,  the 
creditor  having  procured  from  the  debtor  other  security  for 
the  debts  generally,  but  less  than  the  amount  of  his  debts, 
without  that  secured  by  mortgage,  and  the  debtor  having 
absconded ;  held,  the  mortgagor  could  not  claim  to  have  this 
secm-ity  applied  to  his  mortgage,  in  preference  to  the  other 
debts.*  So,  where  a  mortgage  had  been  foreclosed,  and  the 
mortgagee  had  two  executions  in  his  favor,  one  upon  the 
mortgage,  the  other  upon  a  general  judgment  for  the  same 
debt,  and  ordered  the  whole  property  to  be  sold  upon  the 
latter ;  held,  the  proceeds  of  the  sale  should  be  applied  upon 
the  mortgage  debt.^  So  where  a  mortgagee  refused  to  re- 
ceive a  partial  payment  on  the  mortgage,  but  consented  to 
take  the  sum  offered,  and  hold  it  till  payment  of  the  balance, 
and  then  apply  the  whole  to  the  mortgage  ;  but  really  applied 
the  sum  paid  to  his  own  use  ;  held,  on  a  bill  to  foreclose,  this 
sum  should  be  applied  to  the  mortgage,  as  of  the  time  when 

1  Savage  v.  Carter,  2  B.  Mori.  512.  ^  jfgw  York  Life,  &c.  v.  Howard,  2 

2  Tharp  v.  Feltz,  6  B.  Mon.  6.     See     Sandf.  Ch.  183. 
Williams  v.  Thurlow,  31  Maine,  392.  *  Ibid. 

6  Winter  t;.  Garrard,  7  Geo.  183. 

VOL.  I.  43 


506  THE    LAW    OF    MORTGAGES.  [CH.  XVII. 

it  was  received  and  used.^  So  two  persons  held  a  mortgage, 
as  trustees,  upon  an  undivided  half  of  certain  real  estate,  and 
one  of  them,  in  his  own  right,  a  subsequent  mortgage  upon 
the  same  half.  In  a  suit  for  partition  between  the  owners, 
a  sale  was  ordered  and  made ;  neither  the  order  nor  the  con- 
ditions of  sale  referring  to  any  incumbrance.  The  second 
mortgagee  was  present  at  the  sale,  agreed  that  the  property 
should  be  sold  free  from  incumbrance,  knew  that  the  pur- 
chaser had  notice  of  this  agreement,  and  that  the  mortgage 
was  to  be  cancelled,  and  received  one  half  the  proceeds,  being 
the  mortgagor's  share.  He  applied  a  part  of  the  money  to 
the  payment  of  the  second*  mortgage  in  full,  and  the  balance 
to  the  first,  leaving  a  portion  of  it  due.  The  amount  received 
by  him  would  have  paid  the  first  mortgage  in  full,  and  a  part 
of  the  second.  Held,  parol  evidence  was  admissible  of  the 
facts  above  stated,  and  the  first  mortgage  was  satisfied.^ 

21.  Questions  of  this  nature  have  arisen,  where  payments 
have  been  set  up  as  applicable  to  the  principal  of  the  mort- 
gage debt.  Thus  a  mortgage  was  given,  without  any  accom- 
panying obligation,  for  the  payment  of  a  sum  of  money  in 
ten  years,  with  interest  in  three  instalments,  to  be  paid  in 
three,  six,  and  nine  years,  each  instalment  to  be  one  year's 
interest  of  the  whole  sum.  It  was  also  provided,  that  the 
mortgagor  might  pay,  at  any  time  within  the  ten  years,  such 
portions  of  the  mortgage  money  as  he  shall  see  fit.  A  pay- 
ment having  been  made  generally,  more  than  two  years 
before  the  first  instalment  of  interest  became  due,  and  ex- 
ceeding the  first  instalment ;  held,  it  must  be  applied  to  the 
principal.'^  So  a  mortgage  was  made  to  a  banking  company, 
to  secure  sums  then  due  and  all  sums  thereafter  to  become 
due  from  the  mortgagor  to  them,  on  any  banking  or  other 
account,  "  so  as  the  whole  amount  of  principal  moneys  to 
be  ultimately  recovered  or  recoverable  by  virtue  of  that  secu- 
rity, should  not  exceed  the  sum  of  £5,800,  together  with 
interest,"  with  the  addition  of  a  power  of  sale.     The  mort- 

1  Toll  V.  Hiller,  11  Paige,  228.  »  Davis  v.  Fargo,  1  Clark,  470. 

•^  liogers  V.  Rogers,  1  Haiat.  Ch.  32. 


CH.  XVII.]  PAYMENT,   RELEASE,   ETC.  507 

gagor  built  three  houses  upon  the  land,  which  were  succes- 
sively sold  to  different  purchasers,  and  the  prices  paid  to  the 
company,  who  credited  the  mortgagor  with  them  in  his  ac- 
count. Held,  these  sums  were  recovered  by  the  company  by 
virtue  of  the  mortgage  security,  and,  so  far  as  they  were 
applicable  as  principal  moneys,  must  be  considered  as  re- 
ceived in  discharge  of  the  sum  of  £5,800,  and  not  on  gen- 
eral account.^ 

22.  But  where  funds  were  put  in  the  hands  of  a  person, 
by  one  of  several  interested  in  procuring  the  discharge  of  a 
mortgage,  to  be  applied  to  that  purpose,  and  he  agreed  so  to 
apply  them,  the  others  agreeing  to  furnish  him  with  the  re- 
mainder of  the  necessary  funds,  but  failing  to  do  so  ;  held, 
those  failing  to  perform,  on  their  part,  could  not,  by  a  bill  in 
equity,  compel  such  person  to  apply  the  funds  belonging  to 
others  to  the  discharge  of  such  mortgage.^  So  a  mortgage 
was  made  to  secure  $3,000,  part  of  a  debt  of  $10,000.  The 
mortgagor  made  sundry  payments,  which  were  credited  in 
account,  generally,  neither  party  having  directed  any  specific 
application  of  them.  The  equity  of  redemption  was  seized 
on  execution,  appraised  at  $1,  and  set  off  to  the  judgment 
creditor,  subject  to  the  mortgage.  Upon  a  bill  for  foreclosure, 
brought  by  the  mortgagee,  the  creditor  claimed  that  the  pay- 
ments should  be  applied  to  the  mortgage,  and  not  the  other 
part  of  the  plaintiff's  debt.  Held,  no  such  application  should 
be-  made,  as  the  effect  would  be  to  give  the  premises  to  the 
creditor  discharged  of  the  mortgage  to  the  extent  of  the  pay- 
ment, leaving  the  execution  in  full  force.-^  So,  in  a  suit  to 
foreclose  a  mortgage,  brought  after  the  mortgagee's  death, 
the  mortgagor  cannot  rely  upon  debts  due  him  from  the 
mortgagee,  as  payments  on  the  mortgage.*  So  it  has  been 
held,  that  the  devisee  of  an  estate  in  mortgage  cannot  set  off 
an  arrear  of  interest,  due  at  the  death  of  the  mortgagor, 
against  the  arrears  of  interest  due  upon  a  legacy  from  the 

1  Johnson  v.  Bourne,  2  Y.  &  Coll.        ^  Chester  v.  Wheelwright,  15  Conn. 
268.  562. 

2  Holdeu  V.  Pike,  24  Maine,  427.  *  Green  v.  Storm,  3  Sandf.  Ch.  305. 


508  THE  LAW  OF  MORTGAGES.         [CH.  XVII. 

mortgagee  to  the  mortgagor  for  life,  and  not  received  by  the 
mortgagor,  who  was  an  executor  of  the  mortgagee.  This 
decision  was  made  upon  the  grounds,  that  the  case  was  to 
be  regarded  as  it  stood  at  the  death  of  the  mortgagor ;  that 
the  mortgage  debt  still  subsisted,  and  an  adjustment  could 
take  place  only  by  a  process  in  court ;  that,  until  such  adjust- 
ment, the  debts  might  be  separately  assigned ;  and  if  the 
mortgagor  had  sold  the  estate,  subject  to  the  mortgage,  the 
purchaser  could  not  have  claimed  such  a  set-off.^  And  if  the 
owner  of  the  equity  delivers  to  the  owner  of  the  mortgage 
specific  articles,  to  be  applied  in  payment,  but  afterwards 
settles  the  account,  takes  a  note  for  the  property  delivered, 
and  negotiates  it;  the  agreement  thus  to  apply  the  property 
is  hereby  rescinded.^  So  the  plaintiff  was  the  holder  of  four 
notes,  amounting  to  $1,115,  indorsed  by  the  defendant  for 
the  accommodation  of  the  maker.  The  notes  being  due,  and 
the  maker  indebted  to  the  plaintiff  on  other  accounts,  amount- 
ing in  the  whole  to  $6,137,  he  gave  the  plaintiff  a  new  note 
secured  by  mortgage,  but  the  original  demands  were  not  ex- 
tinguished, nor  the  old  notes  and  evidences  of  debt  given  up  ; 
and  it  was  agreed  that  they  should  not  be  cancelled,  except 
upon  certain  conditions  which  were  never  fulfilled.  The 
defendant  having  become  absolutely  liable,  the  plaintiff  called 
upon  him  for  payment  of  the  notes  indorsed  by  him,  and  the 
defendant  thereupon  gave  the  plaintiff  a  mortgage  as  addi- 
tional security  for  the  notes.  The  mortgage  given  by  the 
maker  was  then  foreclosed,  and  the  premises  sold,  yielding, 
after  payment  of  costs,  only  $2,818.  The  plaintiff"  applied 
this  sum  to  other  debts  secured  by  the  mortgage,  and  not  to 
the  indorsed  notes.  The  plaintiff  then  brings  a  bill  of  fore- 
closure for  the  notes  against  the  defendant.  Held,  the  plain- 
tiff had  a  right  thus  to  apply  the  moneys  received,  and  the 
defendant  could  not  claim  to  have  them  applied  pro  raid, 
upon  all  the  debts  which  made  up  the  note  and  mortgage  of 
$6,137  ;  and  that  the  defendant  was  not  entitled  to  a  deduc- 

1  Pett.it  V.  Ellis,  9  Ves.  563.  ^  Deming  v.  Coinings,  11  N.  II.  474. 


CH.  XVII.]  PAYMENT,   RELEASE,   ETC.  509 

tion  from  the  amount  due  on  his  mortgage  to  the  plaintiff, 
on  account  of  the  moneys  received  by  the  plaintiff.^ 

23.  Payment  of  a  mortgage  may  be  proved  or  disproved 
by  facts  and  circumstances,  as  well  as  by  direct  evidence.  It 
is  said  :  —  "A  mortgage,  being  considered  and  treated  merely 
as  a  security  for  the  payment  of  money,  or  the  performance 
of  some  other  act,  is  simply  a  chose  in  action  extinguishable 
by  a  parol  release,  which  equity  will  execute  as  an  agreement 
not  to  sue,  or  by  turning  the  mortgagee  into  a  trustee  for  the 
mortgagor ;  provided  it  proceeds  upon  a  sufficient  considera- 
tion. Such  a  release  or  agreement  may  be  established  pre- 
sumptively, by  showing  declarations  and  acts  of  the  parties 
inconsistent  with  an  averment  of  the  continued  existence  of 
the  mortgage,  and  repugnant  to  the  rights  and  liabilities 
created  by  it,  as  well  as  by  express  proof.  It  is  for  a  jury 
under  proper  directions  to  determine  the  degree  of  weight 
that  ought  to  be  accorded  to  the  facts  proved."'^  Thus  in  an 
action  for  foreclosure,  the  tenant,  for  the  purpose  of  proving 
payment  of  the  mortgage  debt,  offered  evidence  to  show,  that 
for  several  years  after  the  date  of  the  mortgage  the  mortgagor 
occasionally  worked  for  the  demandant.  Held,  for  the  pur- 
pose of  rebutting  this  evidence,  the  demandant  might  prove 
that  the  mortgagor  was  poor,  and  dependent  on  his  earnings 
for  the  support  of  himself  and  his  family,  and  that  the 
demandant  was  accustomed  to  pay  all  his  laborers  at  short 
and  stated  periods.^  So,  if  a  mortgagor  deliver  to  the  mort- 
gagee specific  articles,  to  be  applied  in  discharge  of  the  debt ; 
it  may  be  shown  that  he  afterwards  settled  the  account,  took 
a  negotiable  note  for  the  balance  due,  and  negotiated  it,  and 
thereby  rescinded  the  contract,  so  as  to  preclude  himself  from 
setting  it  up  in  defence  to  a  suit  on  the  mortgage,  as  a  re- 
demption or  payment.*  But  the  retaining  of  mortgaged  prop- 
erty after  the  law-day  has  passed  does  not  authorize  a  pre- 

1  The  Stamford,  &c.  v.  Benedict,  15  Bassett,  13  Gray,  378 ;  Richmond,  &c. 
Conn.  437.  v.  WoodruflC,  8  Gray,  447. 

2  Per  Bell,   J.,  Ackla  v.  Ackla,   6        »  Waugh  v.  Kiley,  8  Met.  290;  Mor- 
Barr,  "230,  231.     See  Hemmenway  v.  gan  v.  Davis,  2  Har.  &  McH.  17,  18. 

*  Dcming  v.  Comings,  H  N.  H.  474. 

43* 


510  THE  LAW  OF  MORTGAGES.         [CH.  XVIT. 

sumption  of  payment.^  And  where  a  mortgage  itself  shows 
no  payment  of  interest,  the  presumption  is,  that  none  has 
been  made.'-  So  the  fact,  that  advances  by  a  father-in-law 
to  his  son-in-law  had  been  made  for  a  long  time,  and  were 
not  evidenced  by  any  writing,  might  authorize  a  jury  to  pre- 
sume that  they  were  not  meant  to  be  repaid,  and  therefore 
no  consideration  for  a  mortgage  ;  but  do  not  raise  a  presump- 
tion of  law  that  the  mortgage  had  been  satisfied,^ 

24.  If  a  tenant  in  fee  simple  or  fee  tail  pay  off  a  charge  on 
the  estate,  the  payment  is  primd  facie  presumed  to  be  for  the 
benefit  of  the  estate.  If  a  tenant  for  life  does  it,  he  is  primd 
facie  entitled  to  the  charge  for  his  own  benefit.  But  in  either 
case  the  presumption  may  be  rebutted.* 

25.  Delivery  to  the  mortgagor,  or  possession  by  the  mort- 
gagor, of  the  notes  secured  by  the  mortgage,  is  primd  facie 
evidence  that  they  have  been  paid  by  him.^  And  a  note  and 
mortgage  will  be  held  satisfied,  where  they  have  been  returned 
to  the  mortgagor,  under  circumstances  which  show  this  inten- 
tion, although  under  protest  re-delivered  to  the  representative 
of  the  mortgagee.  Thus,  a  father,  who  had  made  advance- 
ments to  his  other  children,  conveyed  land  to  his  sons  A. 
and  B.,  taking  from  them  a  note  and  mortgage,  to  operate  as 
a  check  upon  their  conduct,  and  not  to  be  collected,  intend- 
ing the  land  as  a  gift,  subject  to  the  support  of  himself  and 
wife.  A.  and  B.  supported  their  parents  during  their  joint 
lives ;  and  a  few  days  before  his  death  the  father  delivered 
the  mortgage  and  note  to  B.,  saying  that  he  wished  him  to 
keep  them  till  he,  the  father,  and  the  mother  were  dead,  and 
then  the  mortgage  would  be  void.  He  had  often  said  he  did 
not  wish  A.  and  B.  to  pay  anything  for  the  land,  but  only  to 
support  their  parents.  Subsequently  the  note  and  mortgage 
were  demanded  of  B.  by  the  father's  administrator,  and  deliv- 
ered up  by  B.  under  protest ;  and  the  administrator  filed  his 

1  Steele  V.  Adams.  21  Ala.  534.  *  Coote,  464.     See  Brooks   v.  Har- 

*  Olijisled  v.  Killer,  2  Sandt.  325.  wood,  8  Tick.  407. 

"  Mclbuacs  V.  llobbs,  «  Dana,  268.  ^  15  N.  11.  55;  Johnson  v.  Nations, 

26  Miss.  147. 


CH.   XVII.]  PAYMENT,   RELEASE,    ETC.  511 

bill  for  the  foreclosure  of  the  mortgage.  Held,  that  the  bill 
would  not  lie.^  So,  where  a  mortgage  note  is  found  among 
the  papers  of  the  mortgagor  after  his  death,  payment  is  pre- 
sumed, although  his  heirs  have  in  ignorance  of  the  fact  brought 
a  bill  for  redemption  against  the  heirs  of  the  mortgagee,  and, 
by  a  settlement,  the  note  has  been  given  up  to  the  latter.^ 

26.  But  the  presumption  of  payment  may  be  rebutted  by 
evidence  that  the  mortgagee,  supjiosing  erroneously  that  the 
mortgage  was  foreclosed,  and  that  the  mortgagor  was  entitled 
to  the  notes,  delivered  them  to  him  without  payment ;  this  not 
being  a  mistake  of  laiv?  So  the  presumption,  arising  from 
such  possession  by  the  mortgagor  or  those  claiming  under 
him,  is  a  presumption  of  fact  and  not  of  law,  and  will  be  re- 
butted by  any  other  evidence.  Thus,  in  a  suit  by  the  assignee 
of  the  mortgage  against  a  mortgagor  in  possession,  the  pro- 
duction of  the  mortgage  notes  by  the  tenant  does  not  raise  a 
presumption  of  payment,  no  discharge  being  shown,  and  the 
facts  strongly  tending  to  prove  that  the  notes  could  not  have 
been  paid  to  a  lawful  holder,  and  an  assignee  of  the  mort- 
gage.* So  the  words,  written  on  the  face  of  a  mortgage  note, 
"  cancelled  by  A.  B.,"  (the  holder  of  the  note,)  do  not  defeat 
the  mortgage  in  the  hands  of  an  assignee  of  A.  B.,  as  against 
•a  subsequent  mortgagee.^  So,  where  there  is  an  intervening 
title,  and  a  quitclaim  deed  given  ;  there  is  no  merger,  although 
the  mortgage  note  be  given  up.*^  So  a  mortgagee,  upon  re- 
ceiving certain  property  from  the  mortgagor,  which  was  sub- 
ject to  the  lien  of  executions,  gave  up  the  mortgage  to  him. 
Before  the  property  could  be  sold,  the  executions  were  levied 
upon  it.  Soon  afterwards  the  mortgagor  paid  them  off,  but 
did  not  redeliver  the  property  to  the  mortgagee.  Held,  no 
payment  of  the  mortgage.^  So,  where  a  mortgage  has  been 
lost,  equity  will  decree  that  a  new  one  be  made.*'     So  where 

1  Sherman  v.  Sherman,  3  Ind.  337.  ^  New  England,  &c.  v.  Merriam,  2 

2  Richardson  v.  Cambridge,  2  Allen,     Allen,  390. 

118.  '  Sherwood  v.  Elslow,  5  Ind.  218. 

3  Smith  V.  Smith,  15  N.  H.  55.  *  Lawrence  v.  Lawrence,  42  N.  H. 
*  Crocker  v.  Thompson,  3  Met.  224.     109. 

5  BeU  V.  Woodward,  34  N.  H.  90. 


512  THE    LAW    OF   MORTGAGES.  [CU.  XVII. 

the  mortgage  has  been  fraudulently  taken  from  the  mort- 
gagee, he  may  still  foreclose  without  giving  a  bond  of  indem- 
nity.^ So  an  entry  of  satisfaction,  under  seal  and  on  record, 
of  a  mortgage,  is  primd  facie  evidence  only  of  payment  of 
the  debt  as  between  the  original  parties  ;  and  proof  of  subse- 
quent payment  of  interest,  and  of  retaining  the  bond,  is  com- 
petent to  rebut  the  presumption  of  payment.^  So  the  mere 
neglect  to  foreclose  a  mortgage,  for  four  years  after  it  falls 
due,  is  not  conclusive  ground  for  assuming,  in  favor  of  pur- 
chasers of  the  mortgagor's  interest,  the  payment  of  the  debt, 
or  that  it  is  barred  by  the  statute  of  limitations.^ 

27.  If  a  suit  for  foreclosure  has  been  commenced,  and  dis- 
missed for  want  of  prosecution,  and  the  dismissal  long  acqui- 
esced in,  satisfaction  of  the  mortgage  will  be  presumed.* 

28.  Both  in  law  and  equity,  parol  evidence  is  admissible  of 
the  discharge  of  a  mortgage  debt,  and  thereby  of  the  mort- 
gage itself,  [k)  It  is  held,  that  the  provision  of  the  statute  of 
frauds,  requiring  a  writing  to  pass  any  interest  in  real  estate, 
does  not  apply  to  conditional  estates,  held  by  way  of  security, 
which  are  merely  incident  to  the  debts  secured,  and  follow  as 
a  letter  of  course  any  discharge  of  such  debts.  In  law,  the 
interest  in  the  land  is  thereby  defeated ;  in  equity,  a  trust 
arises  for  the  mortgagor,  which  also,  being  implied,  is  within 
the  exception  of  the  statute  of  frauds.  Payment  of  the  debt  is 
held  a  good  defence  to  an  ejectment  upon  the  mortgage,  more 
especially  in  the  case  of  ancient  mortgages.  The  law  allows 
proof  of  any  declarations,  acts,  or  circumstances,  inconsistent 
with  a  continuance  of  the  lien.^  So,  on  the  other  hand,  where 
an  action  is  brought  upon  a  mortgage  against  one  who  is  not 
a  party  to  it,  and  certain  indorsements  appear  upon  the  niort- 

1  Massaker  v.  JIackerley,  1  Stockt.  &  R.  312 ;  Den  v.  Spinning,   1  Halst 

440.  471  ;    Harrison   v.   Eldriilge,    2,   407  ; 

*  Fleming  r.  Parry,  24  Penn.  47.  Morgan    v.   Davis,  2   H.  &   IMcH.  9; 
3  Ware  v.  Bennett,  18  Tex.  794.  Ackla  v.  Ackla,  6  Barr,  288 ;  Henimen- 

*  ^'els^nl  V.  Lee,  10  B.  Mon.  495.  way  v.  Bassett,  13  Gray,  378  ;  Howard 
'■"  Uicliards   x\   Tims,   Barn.    90;    1  v.  Gresham,  27  Geo.  347. 

Pow.  143  a.;  Wentz  v.  Dehaven,  1  S. 

(Jc)  As  to  payment  by  mistake,  see  Peters  v.  Florence,  38  Penn.  194. 


CH.  XVir.J  PAYMENT,   RELEASE,   ETC.  513 

gage  note,  the  plaintifT  may  offer  parol  evidence  to  explain 
them,  or  to  show  that  they  were  made  by  mistake,  unless  at 
the  time  of  purchasing  the  property  the  defendant  had  notice 
of  such  indorsements,  or  made  inquiry  of  the  plaintiff  as  to 
the  amount  due  on  the  mortgage.  Such  indorsements  are 
mere  receipts.^  So,  where  a  mortgagor  went  to  the  mort- 
gagee's house  with  a  box  containing  the  bond  and  mortgage, 
and  offered  them  to  him  ;  but  he  put  back  the  deeds,  saying, 
"  take  back  your  writings,  I  freely  forgive  you  the  debt,"  and 
then,  speaking  to  the  mortgagor's  mother  who  was  present, 
said  :  "  I  always  told  you  I  would  be  kind  to  your  son  ;  now 
I  am  as  good  as  my  word  ; "  held,  this  evidence  was  compe- 
tent to  prove  a  discharge  of  the  mortgage.^  So  an  agreement 
between  mortgagor  and  mortgagee  that  the  land  shall  be  sold, 
waiving  the  lien  of  the  mortgage,  which  is  to  be  paid  from 
the  proceeds,  is  valid ;  and  the  mortgagee  has  a  prior  claim 
upon  such  proceeds.^  (/)  So  the  plaintiff  was  assignee  of  a 
mortgage  ;  the  defendants  assignees  of  the  equity  of  redemp- 
tion. Pending  a  suit  for  the  mortgaged  premises,  the  defend- 
ants, by  their  agent,  offered  to  the  plaintiff  a  sum  of  money 
in  satisfaction  of  the  mortgage.  The  plaintiff,  not  being  cer- 
tain at  the  time  how  much  was  due,  said  that  he  would  take 
the  amount  offered  and  apply  it  to  the  debt ;  but  the  agent 
said  that  he  had  no  authority  to  deliver  the  money  except  in 
full  satisfaction,  and,  if  the  plaintiff  took  it,  he  must  take  it 
upon  those  terms.  The  plaintiff  took  it,  being  advised  by 
counsel,  in  the  presence  of  the  agent,  that  he  would  still  be 
entitled  to  any  balance.  Held,  he  could  not  maintain  a  bill 
to  foreclose,  although  the  amount  due  considerably  exceeded 
the  amount  received.* 

29.  But  it  is  no  defence  to  a  suit  for  foreclosure  brought  by 

1  McDaniels  v.  Lapham,  21  Verm.        '^  Baker  v.  Winipee,  22  Geo.  69j| 
222.  *  M.jDanicIs  v.  Bank,  &c.  3  Wins. 

2  Richards  v.  Syms,  Barnard.  90.         230. 


(J)  As   to  the  party  authorized  to  receive  payment,  see  Richardson  v. 
Brooklyn,  3-1  Barb.  5G9. 


514  THE   LAW    OF   MORTGAGES.  [CH.  XVII. 

executors,  that  the  mortgagee  sent  letters  to  the  owner  of  the 
equity  of  redemption,  promising  that  his  executors  should 
cancel  the  mortgage,  and  containing  words  of  gift.^  So  it  is 
not  a  good  defence  to  a  bill  for  foreclosure,  that  the  plaintiff 
told  the  defendant  he  did  not  wish  him  to  pay  any  more  of 
the  principal  when  due,  but  only  the  interest,  unless  the  plain- 
tiff needed  the  principal,  and  gave  timely  notice.  Such  prom- 
ise is  void  for  want  of  consideration.^  So  the  purchaser  of 
an  equity  of  redemption  may  maintain  an  action  against  his 
grantor  to  foreclose  the  mortgage ;  though  he  had  previously 
agreed  that  the  grantor  might  use  his  name  to  resist  such 
foreclosure.^ 

30.  It  has  been  a  subject  of  much  discussion,  what  is  the 
precise  remedy  of  the  mortgagor  to  regain  his  estate,  where 
the  debt  is  paid  after  condition  broken,  and  consequently  the 
legal  title  absolutely  forfeited,  (m) 

31.  Where  the  debt  is  paid  after  breach  of  condition,  it 
was  early  held  in  Massachusetts,*  that  the  only  remedy  of  the 
mortgagor,  to  regain  possession,  was  a  bill  in  equity,  and  an 
action  at  law  would  not  lie.  A  statute  of  that  State  provided 
for  the  discharge  of  a  mortgage,  after  payment,  upon  the 
record  ;  thus  implying  that  the  mortgagee  still  retained  the 
legal  title.  Moreover,  a  bill  in  equity  is  regarded  as  an  ade- 
quate and  convenient  remedy,  and  well  adapted  to  do  justice 
to  all  parties  ;  at  once  securing  the  rights  of  the  mortgagee, 
and  moderating  the  rigor  of  the  common  law  for  the  benefit 
of  the  mortgagor.     It  is  as  beneficial  to  the  mortgagor  as  a 

1  Scales  V.  Maude,  35  Eng.  Law  &.  »  Brolley  v.  Laphan),  13  Gray,  284. 

Eq.  320.  •*  Hill  v.  Payson.  3  Mass.  5G0 ;  Tar- 

'^  Massaker  v.  Mackerley,  1  Stockt.  sons  v.  Welles,  17  Mass.  419  ;  Sherman 

440.  V.  Abbot,  18  Pick.  448. 


Ill)  By  St.  7  Geo.  2,  ch.  20,  a  mortgagee  cannot  maintain  ejectment  after 
payment  or  tender  of  the  debt  and  cost;  but  is  required  to  reassign,  and 
give  up  all  deeds,  &c.  1  Pow.  1G8.  It  is  held  in  the  United  States  Court, 
that,  after  discharge  of  a  debt  secured  by  mortgage,  the  mortgagee  becomes 
a  trustee  for  the  mortgagor,  and  a  court  of  equity  will  enforce  a  reconvey- 
ance.    Upham  V.  Brooks,  2  W.  &  M.  407. 


CH.  XVII.]  PAYMENT,    RELEASE,    ETC.  515 

suit  at  law,  and  may  sometimes  be  more  so ;  because,  in  case 
of  a  want  of  evidence  of  payment,  the  mortgagee  may  be  put 
upon  his  oath.  It  is  certainly  more  beneficial  to  the  mort- 
gagee. In  case  of  an  action  at  law  against  him,  he  could 
obtain  no  allowance  for  repairs^  which  depends  either  upon 
express  statute  or  the  rules  of  equity.  The  common  law 
recognizes  no  such  claim,  but  considers  the  mortgagee  as 
absolute  owner. 

32.  The  same  doctrine  has  been  recognized  in  much  later 
cases.i  And  it  has  also  been  held,  by  a  reverse  application 
of  the  same  general  principle,  that,  in  an  action  for  posses- 
sion by  a  mortgagee,  the  tenant  cannot  plead  a  tender  after 
breach  of  condition,  but  before  suit  brought.  Nor  a  promise 
by  the  mortgagee,  that  he  should  hold  the.  land  free  of  the- 
mortgage.^ 

33.  So  in  Maine,  a  mortgagee  who  has  entered  for  breach 
of  condition,  or  those  claiming  under  him,  cannot  be  ousted 
by  the  mortgagor  at  law,  after  payment  of  the  debt.  The 
remedy  is  in  equity.^  And  the  rule  is  held  applicable  to  one 
claiming  under  a  warranty  deed  from  the  mortgagee,  made 
after  entry .^  (w) 

34.  So  it  is  held  in  Connecticut,^  that  where  payment  is 
made  after  the  law-day,  neither  the  mortgagor  nor  his  as- 
signee can  maintain  ejectment  against  the  mortgagee,  with- 
out obtaining  the  legal  title ;  nor  can  the  mortgagor  defend 
against  an  ejectment  by  the  mortgagee  or  his  assignee,  (o) 

1  Cutler  V.  Lincoln,  3   Cush.   128;    Pearce  v.  Savage,  45  lb.  90;  Pratt  v. 
New  England,  &c.  v.  Merriam,  2  Allen,     Scholfield,  lb.  380. 

390.  *  Hill  V.  More,  40  Maine,  515. 

2  Maynard  v.  Hunt.  5  Pick.  240.  ^  Doton  v.  Ilussell,  17  Conn.  146 ; 

3  Wilson  V.  Ring,  40   Maine,  116 ;     Cross  v.  Robinson,  21  lb.  379. 


(n)  In  Wisconsin,  a  mortgagor  cannot  maintain  ejectment  against  a  mort- 
gagee lawfully  in  possession  after  condition  broken.  And  the  purchaser  at 
the  foreclosure  sale  has  as  much  right  as  the  mortgagee;  or  all  the  riglits  of 
all  the  parties  to  the  suit.  The  mortgagor's  only  remedy  is  to  institute  pro- 
ceedings for  redemption.  Gillett  v.  Eaton,  6  Wis.  30 ;  Tallman  v.  Ely,  lb. 
244. 

(o)  In  Connecticut,  in   the  case  of  Smith  v.  Vincent,  15  Conn.  13,  Wil- 


516  THE  LAW  OF  MORTGAGES.         [CU.  XVII. 

35.  And  it  was  formerly  held,  in  New  York,^  that  tender 
of  the  debt  after  breach  of  condition  does  not  operate  as  a 
discharge  of  the  mortgage  ;  although,  where  a  mortgagee  has 
received  an  equitable  satisfaction,  if  he  afterwards  attempt 
to  set  up  the  mortgage  as  a  subsisting  lien,  satisfaction  may- 
be decreed,  so  that  it  may  be  cancelled  on  the  record.^  But 
later  cases  l\old,  that  a  tender  of  the  debt  after  the  day  of 
payment  removes  the  lien  of  the  mortgage  as  effectually  as  a 
tender  before  the  day ;  and  the  mortgagee,  if  in  possession, 
may  be  ousted  by  the  mortgagor.  So  payment,  though  after* 
the  day,  revests  the  title.^  In  a  still  more  recent  case  it 
is  held,  that  after  breach  of  condition  ejectment  cannot  be 
maintained  against  the  mortgagee.^ 

36.  In  Mississippi,  where  there  has  been  a  payment,  but 
no  satisfaction  on  record,  or  other  extinguishment  of  the 
mortgage,  a  sale  upon  execution  of  the  mortgagor's  estate 
will  pass  only  an  equitable  title,  to  be  enforced  in  a  court  of 
equity,  but  not  by  ejectment.^  Payment  of  the  debt  does 
not  revest  the  title  in  the  mortgagor  at  law.^ 

37.  In  New  Hampshire,  in  a  recent  case,  it  has  been 
decided  that  payment  of  the  debt,  or  performance  of  the 

1  Post  V.  Arnot,  2  Denio,  344;  Mer-  26  Wend.  541;  Rogers  v.  De  Forest, 
ritt  V.  Lambert,  7  Paige,  374.  7  Paige,  272. 

2  Kellogg  I'.  Wood,  4  Paige,  578.  *  Bolton  v.  Brewster,  32  Barb.  389. 
See  Jackson  v.  Craft,  18  Johns.  110.  ^  Wolfe  v.  Do^yell,  13  Sm.  &  M.  103. 

3  The    Farmers',    &c.    v.   Edwards,  *^  Smith  v.  Otley,  26  Miss.  291. 

Hams,  C.  J.,  adverts  to  the  New  York  decisions,  but  considers  the  rule  as 
established  the  other  way  by  the  cases  of  Phelps  v.  Sage,  2  Day,  151,  and 
Roath  v.  Smith,  5  Conn.  136,  which  are  not  controlled  by  Porter  v.  Seeley, 
13  Conn.  504.  This  last  case  he  considers  as  merely  deciding,  that  one 
without  shadow  of  title  in  the  debt  or  the  land,  a  mere  stranger,  cannot 
protect  himself  by  a  satisfied  mortgage.  Hence  it  was  decided,  that  the 
title  of  a  mortgagee,  under  a  mortgage,  satisfied  after  forfeiture,  may  be  set 
up  as  a  defence  to  an  action  of  ejectment.  In  Sage  v.  Phelps,  2  Day,  151, 
above  referred  to,  it  appeared  that  the  plaintiff,  in  an  action  of  ejectment, 
claimed  under  a  mortgage,  and  the  defendant  under  a  subsequent  absolute 
deed,  from  the  same  person.  The  defendant  offered  to  prove,  that,  after 
the  expiration  of  the  law-day,  the  whole  mortgage-money  was  paid  to  the 
plaintiff's  satisfaction.     Held,  the  evidence  was  inadmissible. 


CH.    XVIT.]  PAYMENT,    RELEASE,    ETC.  617 

duty,  secured  by  the  mortgage,  discharges  the  interest  of  the 
mortgagee,  and  revests  the  estate  fully  in  the  mortgagor.' 

38.  But  a  later  case  holds,  that  a  mortgagor,  or  his  as- 
signee, of  a  subsisting  mortgage,  cannot  maintain  a  real 
action  against  the  mortgagee  or  his  assignee.^  So,  in  Mary- 
land,^ it  is  held,  that  full  payment  of  the  principal  and  in- 
terest due  upon  a  mortgage,  and  the  receipt  thereof  in  sat- 
isfaction by  the  mortgagee,  though  after  the  day  of  payment 
mentioned  in  the  mortgage,  discharges  the  mortgage,  and 
defeats  the  estate  of  the  mortgagee  in  law  and  equity ;  so 
that  no  title  under  the  mortgage  can  afterwards  be  set  up  as 
a  defence  to  an  ejectment  for  the  land.  And  where,  in  an 
action  of  ejectment  by  a  mortgagee  against  an  assignee  of 
the  mortgagor,  it  appeared  that  the  debt  and  interest  had 
been  paid  in  continental  bills,  which  were  received  by  the 
mortgagee  in  discharge  of  the  mortgage,  and  that  the  orig- 
inal mortgage  and  bond  were  delivered  up,  with  a  receipt  in 
full  thereon  ;  but  that  no  release  of  the  lands  had  been  exe- 
cuted ;  judgment  was  rendered  for  the  defendant.* 

39.  So,  in  South  Carolina,  in  case  of  a  piortgage  to  secure 
repayment  of  a  legacy,  if  the  payment  should  prove  invalid; 
judgment  being  rendered  in  favor  of  such  payment,  held,  the 
mortgage  was  functus  officio,  and  could  not  be  enforced  by 
an  assignee.^ 

40.  And  the  same  general  doctrine  is  held  by  the  Court  in 
Ohio,  with  reference  to  the  discharge  or  extinguishment  of  a 
mortsaffe :  "  If  we  look  at  the  true  nature  of  the  contract, 
and  view  the  mortgage  as  it  really  is,  a  mere  security  for  a 
debt ;  if  the  debt  is  the  principal  and  the  mortgage  the  inci- 
dent ;  there  certainly,  as  it  appears  to  me,  can  be  no  good 
reason  why  a  discharge  of  the  debt  should  not  be  held  to  be 
a  discharge  of  the  mortgage,  and  put  an  end  to  the  interest 
of  the  mortgagee  in  the  land.     Such  was  said  by  this  Court 

1  Furbiish  v.  Goodwin,  Law  Rep.  *  Faxon  v.  Paul,  3  Har.  &  McH. 
1855,  March,  p.  650.  399. 

2  Johnson  v.  Elliot,  G  Fost.  07.  ^  Rickard  v.  Talbird,  Rice,  Ch.  158. 
8  Morgan  v.  Davis,  2  Har.  &  McH. 

17. 

VOL.   I.  44 


518  THE    LAW    OF    MORTGAGES.  [CH.    XVII. 

to  be  the  case  in  Hill  v.  West,  8  Ohio,  222,  and  we  are  dis- 
posed to  adhere  to  the  opinion  therein  expressed.  We  are 
aware  that  this  is  contrary  to  the  old  doctrine  upon  the  sub- 
ject, but  we  believe  it  is  in  conformity  with  reason,  and  with 
modern  decisions.  4  Kent  Com.  193.  Nor  does  this  opin- 
ion conflict  with  the  statute  of  the  22d  of  February,  1831, 
pointing  out  the  manner  in  which  satisfaction  of  a  mortgage 
may  be  entered."  ^  So,  in  Kentucky,  in  the  case  of  Breck- 
enridge  v.  Ormsby,^  Robertson,  J.,  says  :  "  A  payment  of  the 
mortgage  debt  extinguishes  the  mortgage,  at  law,  as  well  as 
in  equity.  It  is  not  doubted  that  a  payment  of  the  debt,  be- 
fore forfeiture,  extinguishes  the  mortgage  at  law.  But  there 
are  many  learned  Judges  who  doubt  whether  a  payment 
after  forfeiture  will  have  the  same  effect.  On  this  point 
there  is  great  diversity  in  the  cases  reported,  as  well  as  in 
the  'auctoritas  prudentiim.^  But  ever  since  the  days  of  Hard- 
wick,  the  opinion  has  grown  more  and  more  prevalent,  that 
a  payment,  at  any  time  before  the  title  has  been  passed  to 
the  mortgagee  by  a  decree  or  sale,  will  per  se  at  law,  as  it 
will  in  equity,  divQst  the  mortgagee  of  all  title." 

41.  The  cases  relating  to  this  question  seem  generally  to 
take  for  granted,  that  the  denial  of  the  right  of  possession  or 
of  action  to  one  of  the  parties  necessarily  implies  the  exist- 
ence of  the  same  right  in  the  other.  Thus  in  the  case,  in 
Massachusetts,  of  Hill  v.  Payson,^  above  cited,  it  seemed  to 
be  conceded  by  the  Court,  as  an  inference  from  the  doctrine 
therein  established,  or  as  the  converse  of  that  doctrine,  that 
after  payment  the  mortgagee  might  recover  the  land  by  an 
action  at  law  from  the  mortgagor ;  notwithstanding  the  ap- 
parent hardship  and  injustice  of  such  a  proceeding.  But  in 
the  much  later  case  of  Wade  v.  Howard,  the  Court  remark,^ 
that  this  concession  was  inadvertently  made,  and  distinctly 
decide,  that  the  mortgagee  cannot  thus  recover,  because  the 
only  judgment,  which  the  law  in  such  case  would  authorize, 

1  Per  Hitchcock,  J.,  Perkins  v.  Dib-        *  11  Pick.  297 ;  ace.  Hadlock  v.  Bul- 

ble,  10  Oiiio,  440.  finch,  31  Maine,  246  ;  Webb  v.  Fian- 

■^  1  Mar.  257,  258.  ders,  32,  175. 
3  3  Mass.  560. 


CH.   XVII.]  PAYMENT,   RELEASE,    ETC.  519 

is  a  conditional  one,  that  a  writ  of  possession  shall  issue, 
unless  the  debt  is  paid  vjithin  a  certain  time ;  which,  under 
the  circumstances,  would  be  absurd  ;  it  having  been  already 
paid.  So,  in  Maine,  no  action  can  be  sustained  on  a  mort- 
gage, after  the  mortgage  debt  has  been  paid.^  So,  in  Missis- 
sippi, a  bill  to  foreclose  presents  a  question  of  title,  and  the 
mortgagor  may  show  that  the  mortgagee's  title,  though  ab- 
solute at  law,  has  been  extinguished  in  equity  by  payment.^ 
And  Judge  Story  says  :^  "  Unless  the  mortgagor  can  resist  a 
recovery  by  the  mortgagee  at  law,  he  may  be  turned  out  of 
possession  when  nothing  is  due  on  the  mortgage,  against  the 
plainest  principles  of  justice,  and  be  driven  by  a  circuity  of 
action  to  enforce  his  acknowledged  rights.  If  a  cent  only  be 
due  on  the  mortgage,  the  mortgagee  can  obtain  no  judgment 
at  law  in  his  suit,  but  a  conditional  one,  and  no  possession 
at  all  if  that  cent  is  paid  ;  and  yet,  if  nothing  is  due,  his 
rights  are  absolute,  and  he  is  entitled  to  an  unconditional 
surrender  of  the  possession.  I  confess  I  do  not  understand 
the  reasoning  upon  which  such  a  distinction  can  be  main- 
tained." (p)  It  has  been  held,  however,  in  Massachusetts, 
that  an  action  for  forcible  detainer  may  be  maintained  upon 
a  mortgage,  which  was  paid  after  condition  broken.  The 
objection  already  referred  to,  that  the  judgment  must  be  con- 
ditional, does  not  apply  to  such  an  action.* 

42.  A  mortgage  may  be  extinguished,  not  only  by  pay- 
ment of  the  debt,  but  by  a  subsequent  direct  transfer  of  the 
estate  itself  from  one  to  the  other  of  the  parties.  Of  course, 
as  will  be  more  fully  seen  hereafter,  (§  49,)  this  result  follows 
from  an  express  relinquishment  of  title  by  the  mortgagee ;  but 
it  may  equally  be  produced,  by  a  conveyance  or  release  from 

1  Williams  v.  Thurlow,  31  Maine,  ^  Gray  v.  Jenks,  3  Mas.  527. 

392.  *  Howard  v.  Howard,  3  Met.  557. 

^  Wilkinson   v.  Flowers,   37   Miss.  See  Gerrish  v.  Mason,  4  Gray,  432. 
579. 

(p)  The  doctrine  of  the  text  is  said  to  be  adopted  in  Maine,  Massachu- 
setts, Maryland,  New  York,  Vermont,  New  Jersey,  Pennsylvania,  and  Ohio. 
But  it  is  held  otherwise  in  Connecticut,  Kentucky,  and  Virginia.  2  Greenl. 
Cruise,  122,  n. 


520  THE   LAW    OF   MORTGAGES.  [CH.   XVII. 

the  mortgagor  to  the  mortgagee,  the  effect  of  which  is  to 
vest  in  the  latter  an  interest  inconsistent  with,  or  repugnant 
to,  his  claim  under  the  mortgage.  Thus  the  mortgagor  may 
convey  or  release  his  estate  to  the  mortgagee,  after  maturity 
of  the  debt,  in  satisfaction  thereof,  unless  the  transaction  be 
fraudulent;^  or  unless  intention,  incapacity  to  elect,  or  in- 
terest in  the  mortgagee  to  keep  the  security  alive,  prevent 
this  result.^  Though,  it  is  said,  equity  looks  with  suspicion 
on  such  a  transaction,  in  reference  to  an  extinguishment  of 
the  mortgage.^  And  where  the  equity  of  redemption  is  con- 
veyed by  quitclaim  deed  to  a  person  previously  holding  a 
mortgage  on  the  same  estate,  the  estate  will  not  be  merged, 
contrary  to  a  declaration  in  the  deed,  that  such  deed  should 
not  operate  as  a  merger,  except  at  the  election  of  the  grantee 
without  evidence  of  such  election.^  But  where  a  devisee 
in  trust  with  power  to  sell,  for  valuable  consideration  paid 
by  a  mortgagee,  after  the  condition  had  been  broken,  "  forever 
quitclaimed  all  the  estate,  right,  title,  &c.,  at  law  as  well  as 
in  equity,  in  possession  as  well  as  in  expectancy,"  describing 
the  premises ;  held,  the  equity  of  redemption  passed  ;  °  though 
it  was  further  held,  that  the  mortgagee  might  still  maintain 
a  bill  to  foreclose,  in  order  to  quiet  his  title.^  So  where  the 
heirs  of  a  mortgagee  were  in  possession  of  an  ancient  deed, 
releasing  the  equity  of  redemption,  such  deed,  even  though 
not  recorded,  was  held  to  preclude  a  redemption  by  a  sub- 
sequent purchaser."  So,  where  a  mortgagee  purchases  and 
takes  a  deed  of  the  mortgaged  premises,  paying  a  part  of 
the  consideration  by  the  mortgage  note ;  such  mortgage  is 
thereby  paid  off  and  extinguished,  in  law  and  equity,  al- 
though uncancelled  on  the  record.^     And  a  conveyance  from 

1  Slielton  V.  Hampton,  6  Ired.  210;  *  Spencer  v.  Ayrault,  10  N.  Y.  (6 

Harrison  ;;.  The  Trustees,  &c.,  12  Mass.  Seld. )  202. 

465 ;  Jackson  v.  Tift,  15  Geo.  557 ;  Gale  ''  Hitchcock  v.  United  States,  &c.,  7 

V.  Mcnsing,  20  Mis.  461 ;   Snyder  v.  Ala.  386. 

Snyder,   6  Mich.  470,   {a  strong  case  *^  Ibid,    contra,  Ormsby    v.  Pliillips, 

against  merger.)  4  Dana,  232. 

-  Waugh    V.    Riley,    8    Met.    290 ;  '  JNIailory  v.  Aspinwall,  2  Day,  280. 

Knowles    v.    Lawton,    18    Geo.   476;  ^  Jennings,  &c.  v.  Wood,  20  Ohio, 

Vannest  v.  Latson,  10  Barb.  604.  261.     Spalding,  J.,  dissenting. 

■^  Ilitclicock  V.   United   States,  &c., 
7  Ala.  886. 


CH.   XVII.]  PAYMENT,   RELEASE,   ETC.  521 

the  mortgagor  to  the  mortgagee  may  enure  to  the  benefit  of 
a  previous  grantee  of  the  former.  Thus  a  mortgagor,  having 
conveyed  the  land  to  a  third  person,  afterwards  conveyed  it 
to  the  mortgagee,  who  entered  satisfaction  of  the  mortgage. 
Held,  the  former  grantee  thus  gained  the  absolute  legal  title.^ 
43.  While  a  quitclaim  deed  from  mortgagor  to  mortgagee 
is  held  to  be  a  merger  of  the  mortgage ;  a  quitclaim  deed  of 
part  of  the  mortgaged  premises  to  the  mortgagee  or  his  as- 
signee does  not  wholly  extinguish  it,  but  at  most  for  only  a 
proportional  part  of  the  debt ;  ^  although  the  assignee's  title 
to  the  half  in  question  v/as  derived  from  one  who  had  pur- 
chased it  from  the  mortgagor,  and  given  back  an  agreement 
to  pay  off  the  mortgage ;  especially  if  the  assignee  had  no 
notice  of  the  agreement.^  So  a  mortgagee,  by  the  purchase 
of  a  part  of  the  mortgaged  premises  in  payment  of  a  debt 
not  secured  thereby,  does  not  prejudice  his  mortgage  in  re- 
spect to  the  residue.*  [q) 

1  White  V.  Todd,  10  Mis.  189.  »  Ibid. 

2  Klock  V.  Kronkhite,  1  Hill,  107 ;        *  Stover  v.  Harrington,  7  Ala.  142. 
James  v.  Moray,  2  Cow.  246. 


(^q)  Two  tenants  in  common  mortgaged  to  two  other  persons,  and  their 
equity  of  redemption  was  afterwards  sold  on  execution.  The  mortgagees 
recovered  a  judgment  for  possession,  and  subsequently  one  of  them  trans- 
ferred all  his  title  to  the  execution  purchaser,  who  conveyed  one  half  of  the 
right  in  equity,  sold  on  execution,  to  another  person.  Subsequently,  pos- 
'session  was  delivered  to  the  mortgagees  upon  their  execution.  Afterwards, 
the  execution  purchaser  conveyed  to  the  mortgagee,  who  had  not  parted 
with  his  interest,  all  his  title,  thus  uniting  in  the  latter  the  rights  of  mort- 
gagor and  mortgagee  of  half  the  land.  This  conveyance  was  treated  by  the 
grantee  of  the  execution  purchaser  as  payment  of  half  the  debt ;  and,  hav- 
ing tendered  the  balance,  he  brings  a  bill  in  equity  to  redeem  against  the 
mortgagee  last  referred  to.  Held,  as  the  defendant  purchased  only  a  moiety 
of  the  equity  of  redemption,  only  a  moiety  of  the  mortgage  was  extinguished  ; 
that  the  recovery  of  a  judgment  upon  the  mortgage  by  the  mortgagees,  be- 
ing previous  to  the  defendant's  acquiring  any  title  io  the  equity,  did  not 
indicate  his  intention  as  to  an  extinguishment  or  otherwise ;  and,  as  the  de- 
fendant would  gain  nothing  by  keeping  alive  a  moiety  of  the  mortgage,  it 
was  held  to  be  extinguished.     Freeman  v.  Paul,  3  Greenl.  260. 

In  May,  1836,  A.,  owning  land  in  Michigan,  gave  a  bond  and  a  mortgage 
of  it  to  B.,  of  New  York.  In  March,  1838,  B.  assigned  to  C,  as  security 
44* 


522  THE  LAW  OF  MORTGAGES.        [CH.  XVIL 

44.  If  the  mortgagee  purchase  the  land  at  a  judgment 
sale,  this  wholly  extinguishes  the  mortgage,  where  the  sale 
is  made  in  favor  of  a  tMrd  person  ;  and  where  it  is  founded 
upon  a  judgment  for  the  mortgage  debt,  to  the  amount 
which  he  gives  for  the  land.^  (r) 

45.  A  mortgage  will  not  be  extinguished  by  the  mort- 
gagee's receiving  an  absolute  conveyance,  unless  the  two 
titles  become  thereby  united  in  him  at  the  same  time. 
Thus,  in  1821,  Reuben  Sherman  conveyed  the  demanded 
premises  to  Reuben  Sherman  junior,  taking  back  a  mort- 
gage for  the  whole  or  a  part  of  the  price.  August  25,  1828, 
the  mortgagor  conveyed  to  the  demandant ;  the  deed  being 
recorded  on  the  30th  of  August.     Before  this  conveyance, 

1  Speer  v.  Whitfield,  2  Stock.  107. 


for  a  debt.  After  breach,  C,  with  the  debtor's  assent,  assigned  the  bond 
and  mortgage  to  D.,  as  security  for  a  note  on  which  both  were  liable.  After 
breach  in  this  case,  D.  sold  to  E.,  who  sold  to  F.  F.  received  from  A.  a 
deed  of  the  land,  and  cancelled  the  bond.  After  C.'s  claim  had  become  ab- 
solute, B.,  having  become  insolvent,  assigned  to  G.,  who  had  been  appointed 
receiver,  under  the  statute  of  New  York.  Of  this  D.  knew  nothing  when 
he  purchased.  As  soon  as  he  was  informed  of  it,  he  retjuested  G.  to  re- 
deem, by  paying  the  debt,  but  G.  refused,  and  authorized  D.  to  dispose  of 
the  bond  and  mortgage.  Held,  that  G.,  by  the  assignment  to  him,  took  an 
interest  in  the  bond  and  mortgage ;  that  the  conveyance  from  A.  to  F.  oper- 
ated as  a  merger  of  the  mortgage  ;  that  neither  the  mortgage  nor  the  land, 
when  held  by  F.,  was  subject  to  any  claim  of  G. ;  and  that  all  holding  the 
land  under  F.  held  it  free  of  all  and  any  prior  ecjuity  of  G.  Graydon  v. 
Church,  4  Mich.  646. 

If  the  owner  of  an  equity  of  redemption,  not  being  the  mortgagor,  con- 
vey with  warranty,  afterwards  take  an  assignment  of  the  mortgage,  and  re- 
assign it  to  a  bond  Jide  purchaser  ;  he  is  held  to  have  taken  the  assignment 
for  the  benefit  of  his  grantee;  hence  the  mortgage  is  extinguished.  JMickles 
V.  Townsend,  18  N.  Y.  575. 

(r)  But  where,  at  a  sheriff's  sale  under  a  second  mortgage,  the  lands 
were  purchased  in  his  own  right  by  the  executor  of  the  first  mortgagee ; 
held,  this  purchase  did  not  necessarily  operate  as  a  merger  and  extinguish- 
ment of  the  first  mortgage,  but  its  effect  depended  on  the  intention  of  the 
purchaser.  Also,  that  the  mortgage  might  be  extinguished  as  to  only  a  part 
of  the  premises.     Clift  v.  White,  2  Kern.  519. 


CH.  XVII.]  PAYMENT,   RELEASE,    ETC.  .  523 

Sherman  senior  mortgaged  to  the  tenant,  but  the  mortgage 
was  not  recorded  till  after  registration  of  the  demandant's 
deed.  Subsequently,  the  tenant  and  Sherman  senior  con- 
veyed to  Samuel  Sherman,  and  Samuel  to  the  tenant. 
Held,  as  the  mortgage  from  Sherman  junior  to  Sherman 
senior  was  recorded  before  the  conveyance  to  the  demand- 
ant, this  conveyance  passed  to  him  only  the  equity  of  re- 
demption ;  and  that  the  conveyance  from  the  tenant  and 
Sherman  senior  to  Samuel  did  not  operate  as  an  extinguish- 
ment of  the  mortgage  from  Sherman  junior  because  Samuel 
did  not  have  his  title  as  mortgagor,  which  was  then  vested 
in  the  demandant.  And  if  this  conveyance  to  Samuel  did 
extinguish  the  mortgage  from  Sherman  senior  to  the  ten- 
ant, it  was  immaterial,  for  then  Samuel  took  the  legal  estate 
from  the  other  grantor,  and  the  tenant  then  derived  the  legal 
estate  from  Samuel,  and  therefore  this  action  could  not  be 
maintained,  the  demandant  acquiring,  by  payment  of  the 
debt,  a  mere  equitable  title.^  So  in  Pratt  v.  Bank,  &c.^ 
Whiton  mortgaged  to  Hinsdell,  who  assigned  to  the  plain- 
tiffs. Afterwards  the  mortgagor,  by  a  quitclaim  deed,  re- 
leased to  the  mortgagee,  and  the  mortgagee  mortgaged  to 
the  defendants.  Upon  a  bill  for  foreclosure,  held,  the  mort- 
gage title,  by  these  transactions,  had  not  merged  in  the  fee. 
There  can  be  no  merger,  unless  the  two  estates  unite  in  one 
and  the  same  person,  and  in  the  same  right.  Upon  the  as- 
signment of  the  mortgage  to  the  plaintiffs,  they  became  mort- 
gagees, and  Whiton  mortgagor,  and  Hinsdell  had  no  estate 
of  any  kind  in  the  land.  When  the  mortgagor  assigned  his 
equity  to  Hinsdell,  the  latter  acquired  his  rights,  the  plain- 
tiffs having  those  of  the  mortgagee.  As  the  assignment  by 
the  mortgagee  to  the  plaintiffs  was  prior  to  the  release  by 
the  mortgagor  to  him,  the  estates  of  the  mortgagee  and  mort- 
gagor never  became  united  in  the  mortgagee,  and,  not  sub- 
sisting at  any  time  in  one  person,  could  never  unite  and 
merge  in  the  fee. 

1  Sherman  v.  Abbot,  18  Pick.  448.  "^  10  Verm.  293. 


524  THE    LAW    OF    MORTGAGES.  [CH.    XVII. 

46.  A  mere  conveyance  to  the  mortgagee  will  not  affect 
the  mortgage,  without  evidence  of  a  delivery  and  a  claim 
under  such  conveyance,  nor  without  the  mortgagee's  assent 
thereto.^  Thus  a  mortgage  was  made  by  an  inhabitant  of 
New  Jersey  to  an  inhabitant  of  New  York,  of  lands  in  the 
former  State,  as  security  for  a  bond.  Subsequently,  the 
mortf^agor  for  his  own  purposes  executed  and  caused  to  be 
recorded,  in  New  Jersey,  a  deed  of  the  land  to  the  mortgagee, 
to  which  the  latter  never  assented.  The  mortgagee  having 
assigned  the  bond  and  mortgage,  with  all  his  other  property, 
for  the  benefit  of  his  creditors  ;  a  creditor  attached  the  land. 
Held,  the  deed  did  not  extinguish  the  mortgage,  and  the  lat- 
ter should  prevail  over  the  attachment.^ 

46  a.  If  a  debt  is  secured  by  a  mortgage  and  also  by  a 
surety,  the  mortgage  will  not  be  extinguished  by  the  mort- 
gagee's purchasing  the  equity  of  redemption,  with  the  honCi 
fide  purpose  of  benefiting  the  surety.^ 

47.  If  a  mortgagor  make  a  fraudulent  conveyance  to  the 
mortgagee,  the  mortgage  note  being  given  up,  and  the 
amount  of  it  included  in  the  sum  intended  to  be  secured  by 
such  convevance  ;  the  mortgage  is  not  extinguished,  but,  when 
the  conveyance  is  avoided  by  creditors,  revives,  subject  only 
to  the  amount  for  which  the  deed  was  given  fraudulently.* 

48.  If  an  equity  of  redemption  is  attached,  an  assignment 
of  the  mortgage  to  a  purchaser  of  the  equity  of  redemption 
does  not  extinguish  the  mortgage.  The  attachment  prevents 
the  estates  from  coalescing.^ 

49.  A  mortgage  will  of  course  be  extinguished  by  a  direct 
release  or  discharge,  which  may  be  in  the  form  of  a  separate 
deed,  or,  as  is  more  commonly  the  case,  written  upon  the 
back  of  the  mortgage  deed  itself,  and  acknowledged  and 
recorded  like  other  transfers  of  real  estate.     So  a  receipt  in 

1  Waugh   V.   Riley,   8  Met.   29  ;    1  *  Ladd  r.  Wiggin,  35  N.  H.  421. 

Halst.  Ch.  43.  '•>  Grover  v.  Thatcher,  4  Gray,  526, 

-  Longstreet  v.  Shipman,   1    Halst.  (affirming  the  "  elaborate  opinion  "  in 

Ch.43.  Hunt  v.  Hunt,  14  Pick.  374.) 

»  CuUum  V.  Emanuel,  1  Ala.  (N.  S.) 
23. 


CH.  XVII.]  PAYMENT,   RELEASE,   ETC.  525 

full  of  the  mortgage  debt  is  an  equitable  release  of  the  mort- 
gage.^ So  a  mortgage,  though  under  seal,  may  be  released 
by  a  parol  agreement,  without  payment.^  (s)  But  where 
two  mortgagees  gave  to  the  mortgagor  a  release,  reciting 
payment  in  full  of  the  debt;  and,  the  same  day,  the  latter 
gave  a  mortgage  to  one  of  the  mortgagees  ;  held,  the  release 
could  not  be  explained  by  parol  evidence,  and  that  an  incum- 
brance between  these  two  mortgages  should  have  priority.^ 
So  where  a  mortgagee  executes  an  instrument  in  these 
words  :  "  This  mortgage  is  discharged,  a  second  mortgage 
having  been  given  of  other  lands  to  secure  the  same  debt ; " 
such  instrument  cannot  affect  the  mortgagee's  rights,  unless 
he  be  chargeable  with  fraud,  which  is  affirmatively  proved 
against  him.^ 

50.  In  general,  a  quitclaim  deed  from  the  mortgagee  or  his 
assignee  to  a  purchaser  of  the  equity  of  redemption  extin- 
guishes the  mortgage.^  Thus  A.  sold  to  B.,  with  covenants 
for  quiet  enjoyment  and  against  incumbrances,  and  took  a 
mortgage  back  for  the  purchase-money.  At  the  same  time 
there  was  a  judgment  against  A.,  which  was  a  lien  on  the 
premises,  and  under  which  they  were  sold  and  ultimately 
conveyed  to  C.  C,  on  the  same  day  that  he  took  a  deed 
from  the  sheriff,  executed  a 'deed  of  release  and  quitclaim  to 
B.,  being  at  the  same  time  the  holder  of  the  mortgage. 
Held,  C.  could  not  foreclose  the  mortgage.^ 

51.  But  where  a  conveyance  from  the  mortgagee  to  the 
purchaser  of  the  equity  of  redemption  concluded  thus, — 
"  meaning  hereby  to  convey  all  the  right,  title,  and  interest 
now  vested  in  me,  by  virtue  of  any  and  all  conveyances  here- 

1  Marriott  v.  Handy,  8  Gill,  31.  '     ^  Jerome  v.  Seymour,  Earring.  Ch. 

^  Wallis  V.  Long,  16  Ala.  738.  357. 

3  Woollen  r.  Hiller,  9  Gill,  185.  ^  Woodbury  v.  Aikin,  13  111.  639. 

*  Gates  V.  Adams,  '2i  Verm.  70. 


(.«)  A  mortgagee,  with  notice  that  a  prior  mortgage  has  been  improperly 
discharged  without  being  satisfied,  takes  no  better  title  than  his  mortgagor. 
Morgan  v.  Chamberlain,  26  Barb.  163. 


526  THE   LAW    OP   MORTGAGES.  [CH.  XVII. 

tofore  made  to  me  by "  the  mortgagors ;  held,  these  words 
showed  no  intention  to  discharge  the  mortgage,  but  the  re- 
verse.^ 

51  a.  A  release  executed  by  A.,  a  cestui  que  trust,  to  B., 
of  all  claims  or  demands  of  every  nature  which  C,  the  trus- 
tee, who  is  in  possession  of  the  legal  estate,  has  against  B., 
on  account  of  a  mortgage  executed  by  B.  to  the  trustees,  is 
not  a  conveyance  of  the  estate  of  C,  and  is  not  therefore  a 
compliance  with  an  agreement  to  convey  the  interest  of  C, 
the  trustee.^  So  A.,  holding  a  mortgage  upon  several  lots 
of  land  belonging  to  B.,  to  secure  a  debt  of  $900,  executed  a 
release  to  B.  of  all  claims  and  demands  whatever,  in  consid- 
eration of  the  conveyance  of  a  lot  of  land  valued  at  $200; 
but  the  mortgage  debt  was  not  due  at  the  time,  and  the  mort- 
gage was  not  delivered  up  or  cancelled.  Held,  the  mortgage 
debt  was  not  affected  by  the  release.^ 

52.  A  bond  of  indemnity  may  sometimes  operate  as  a  re- 
lease. Thus  the  grantee  of  a  mortgagor,  being  about  to 
sell,  procured  from  the  mortgagee  to  the  purchaser  a  bond, 
conditioned  that  the  grantee  should  save  the  purchaser  harm- 
less from  all  cost  and  damage  in  consequence  of  any  previous 
incumbrance.  Held,  the  effect  was  to  release  the  land  from 
the  mortgage.*  So  A.  mortgaged  land  to  B.,  and  then  con- 
veyed the  land,  subject  to  the  mortgage,  to  C.  C.  conveyed 
the  land,  with  warranty,  to  D.,  and  D.,  with  similar  covenants, 
to  E.,  having  first  procured  B.  to  execute  a  bond  to  E.,  con- 
ditioned that  D.  should  save  E.  harmless  from  any  incum- 
brance, the  parties  understanding  and  intending  that  this 
would  discharge  the  land  from  the  mortgage,  but  would  leave 
B.  the  right  to  pursue  his  remedy  against  A.  for  his  debt, 
and  also  to  hold  C  and  D.  upon  their  warranty,  and  to  pros- 
ecute suits  thereon  in  the  name  of  E..  but  for  his  own  bene- 
fit. Held,  the  bond  discharged  the  incumbrance,  and  conse- 
quently released  C.  and  D.  from  their  covenants,  so  far  as  the 

1  Tool  V.  Hathaway,  9  Shepl.  85.  ^  Mclntyre  v.  Williamson,  1  Edw. 

*  Simonton  v.  Gandolfo,  4  Florida,     Ch.  34. 
209.  4  Proctor  i^.  Thrall,  22  Verm.  262. 


CH.  XVII.]  PAYMENT,   RELEASE,   ETC.  527 

mortgage  was  concerned,  and  that  chancery  could  grant  no 
relief.^ 

53.  Where  the  purchaser  of  part  of  a  lot  of  land,  subject 
to  a  mortgage,  paid  the  purchase-money  to  the  mortgagee, 
and  took  a  release  of  his  land  from  the  mortgage ;  held,  that 
portions  of  the  land,  previously  sold,  were  not  thereby  dis- 
charged.2 

54.  Where  a  release  of  a  mortgage  is  made  to  distinct 
parties,  it  will  take  effect  according  to  their  respective  inter- 
ests in  the  land,  independent  of  the  mortgage.  Thus,  in 
the  case  of  Baylies  v.  Bussey,^  a  mortgagor  and  mortgagee 
joined  in  a  second  mortgage.  The  second  mortgagee  took 
possession  for  breach  of  condition,  but,  before  the  expiration 
of  three  years,  tendered  a  release  of  his  mortgage,  which  the 
parties  refused  to  receive,  till  after  the  lapse  of  five  years. 
The  release  was  held  to  reinstate  the  mortgagor  and  first 
mortgagee  in  the  same  relative  position  as  if  the  second 
mortgage  had  not  been  made. 

55.  Where  a  creditor  agreed  to  discharge  his  debtor,  upon 
the  fulfilment  of  a  certain  agreement  by  him,  under  which 
the  debtor's  goods  were  to  be  surrendered  to  the  creditor,  &c., 
but  all  remedies  on  a  certain  mortgage,  given  by  the  debtor 
and  others  to  secure  the  debt,  were  expressly  reserved  by  the 
same  agreement ;  held,  the  other  mortgagors  were  not  dis- 
charged from  their  liability  as  sureties.* 

56.  In  most  of  the  States,  a  summary  method  of  releasing 
or  discharging  mortgages  has  been  provided  by  statute ; 
which  is,  an  entry  upon  the  margin  of  the  record  in  the 
Registry  of  Deeds.  This  mode  has  probably  to  some  extent 
superseded  the  more  technical  forms  of  discharge,  (t) 

1  Proctor  V.  Thrall,  22  Verm.  262.  '^  5  Grecnl.  153. 

2  Evertson  v.  Ogden,  8  Paige,  275.  *  Clagett  v.  Salmon,  5  Gill  &  J.  314. 


(t)  In  Massachusetts,  New  Hampshire,  Maine,  Rhode  Island,  Vermont, 
Delaware,  New  Jersey,  Pennsylvania,  Alabama,  South  Carolina,  Missouri, 
the  discharge  may  be  made  by  attorney.  (Neither  the  discharge  nor  the 
authority  of  the  attorney  need  be  under  seal.     Valle  l\  American,  &c.,  27 


528  THE   LAW    OF   MORTGAGES.  [CH.  XVII. 

57.  After  assignment,  a  discharge  executed  by  the  mort- 
gagee or  his  administrator,  and  recorded  without  payment 


Mis.  455.  Nor  need  the  payment  be  in  money.  Ibid.)  In  Illinois,  Indiana, 
Michigan,  Arkansas,  Mississippi,  Wisconsin,  and  Iowa,  (the  discharge  to  be 
attested  bv  the  register,)  it  is  provided  by  statute,  that  mortgages  may  be 
discharged  upon  the  margin  of  the  public  record.  In  Pennsylvania,  Mis- 
souri, Illinois,  Mississippi,  and  Alabama,  the  mortgagee  shall  enter  the  dis- 
char<Te  in  three  months  after  demand,  (or  in  Missouri  give  a  release,)  under 
penalty  of  forfeiting  a  sum  not  exceeding  the  debt.  In  Michigan,  in  seven 
davs,  under  penalty  of  $100,  and  all  actual  damage.  In  Iowa,  within  six 
months,  under  penalty  of  S25.  In  South  Carolina,  in  three  months  from 
demand  of  any  one  interested  in  the  estate,  under  penalty  of  one  half  of  the 
debt.  In  Massachusetts  and  Wisconsin,  in  seven  days  from  demand.  (An 
action  on  the  case,  under  Rev.  Sts.  ch.  59,  §  39,  for  refusal  to  discharge  a 
mortgage,  is  a  penal  action,  and  calls  for  a  strict  construction  of  the  statute. 
The  mortgagor  must  therefore  show  full  performance  of  the  conditions  of  the 
mortgage  according  to  the  statute.  A  verbal  agreement  to  release  for  less 
than  is  due  is  without  consideration,  and  cannot  be  enforced.  Though  the 
plaintilf  purchased  the  land  upon  the  faith  of  such  an  agreement,  so  that  it 
might  be  binding  in  a  foreclosure  suit,  it  does  not  dispense  with  proof  of 
payment  in  full,  in  an  action  for  the  penalty  under  the  statute.  Stone  v. 
Lannon,  6  Wis.  407.)  In  Vermont,  New  Hampshire,  and  Rhode  Island,  ten 
days;  in  Arkansas,  sixty  days,  under  a  penalty  not  exceeding  the  debt;  in 
Delaware,  sixty  days,  under  penalty  of  paying  all  damage  or  a  fi.xed  sum  ; 
with  treble  costs  in  Rhode  Island.  The  same  provision  is  made  in  the  last- 
named  State,  for  refusal  to  execute  a  release.  But  the  statute  is  not  (o  im- 
pair the  effect  of  any  other  legal  discharge,  payment,  satisfaction,  or  release. 
In  New  Hampshire,  after  payment  or  tender,  the  Court  may  decree  a  dis- 
charge, and  a  copy  of  the  decree  shall  be  recorded.  In  Michigan,  the  mort- 
gagee, before  such  discharge  upon  the  record,  is  to  give  a  certificate,  which 
shall  be  acknowledged,  &c.,  like  a  deed.  Mass.  Gen.  Sts.  418  ;  Maine  Rev. 
Sts.  ch.  89,  §  26;  1  Verm.  L.  194,  195,  (see  Ibid.  1837,  6)  ;  Verm.  Rev, 
Sts.  316  ;  Gen.  Sts.  451  ;  N.  H.  Rev.  Sts.  245,  246  ;  Purd.  Dig.  196  ;  Penn.  Sts. 
1849,  527  ;  Alk.  94  ;  Hutchinson,  (Miss.)  611  ;  Wis.  Rev.  Sts.  330,  331  ;  N.J. 
Rev.  Sts.  659 ;  S.  C.  St.  Dec.  181 7,  26  ;  Ind.  Rev.  L.  272 ;  111.  Rev.  L.  510  ; 
Del.  Rev.  L.  1829,  92 ;  R.  I.  L.  205,  206  ;  R.  I.  Rev.  Sts.  1857,  340  ;  Mis.  St. 
409,410;  Mich.  St.  1839,219  ;  Mich.  L.  1861,  11  ;  Iowa  Rev.  Sts.  651 ;  Ark. 
L.  748.     See  Phelps  v.  Rolfe,  20  Mis.  479. 

It  seems,  an  action  lies  to  cancel  a  paid  mortgage,  in  order  to  remove  a 
cloud  from  the  plaintiff's  title.  But  whether  this  is  so  where  the  mortgage 
is  stale,  or  not  asserted,  qu.     WofTord  v.  Thompson,  8  Tex.  222. 


CH.  XVII.]  PAYMENT,    RELEASE,  ETC.  529 

and  without  authority,  has  no  other  effect  than  to  cancel  the 
record,  and  give  priority  to  a  subsequent  recorded  deedJ 

1  Ely  V.  Schofield,  35  Barb.  330. 


In  Illinois,  a  release  by  deed,  attested  by  one  witness,  and  legally  acknowl- 
edged, is  also  provided.     Sts.  1838,  1839,  197. 

In  Indiana  and  Wisconsin,  the  register  of  deeds  may  discharge  a  mort- 
gage, upon  the  exhibition  of  a  certificate  of  payment  or  satisfaction,  signed 
by  the  mortgagor  (mortgagee)  or  his  representative,  and  attached  to  the 
mortgage  ;  which  shall  be  recorded.  A  like  provision  is  made  in  New  York, 
Pennsylvania,  and  Michigan.  Ind.  St.  1836,  G4  ;  1  N.  Y.  Rev.  Sts.  761  ; 
Wis.  St.  supra;  Pa.  L.  18.56,  304;  Mich.  Comp.  L.  1857,  844. 

The  following  points  have  been  decided  in  New  York,  in  reference  to  the 
power  of  clerks  in  chancery  to  discharge  mortgages,  which  have  been  made 
for  moneys  deposited  in  that  court. 

Where  moneys  deposited  in  the  Court  of  Cliancory,  in  a  suit  for  tlie  par- 
tition of  lands,  have  been  invested  by  the  clerk  upon  bond  and  mortgage 
executed  to  him  in  his  official  character ;  such  clerk  has  no  power  to  dis- 
charge the  mortgage  without  order  of  Court.  The  Farmers',  &c.  v.  Wal- 
worth, 1  Comst.  433.  It  seems,  where  the  clerk  executes  such  discharge 
without  actual  payment  and  without  order  of  Court,  it  is  void  even  as  against 
honci  fide  purchasers  of  the  property  incumbered  by  the  mortgage.  Ibid. 
But  the  unauthorized  act  of  the  clerk  may  be  ratified  by  the  owners  of  the 
fund  secured  by  the  mortgage.  Ibid.  A  clerk  in  chancery  loaned  upon 
bond  and  mortgage  a  large  sum,  which  had  been  paid  into  court  to  secure  a 
widow's  dower,  in  pursuance  of  a  decree  in  partition.  Afterwards,  the  bor- 
rowers executed  to  the  clerk  another  bond  for  the  same  sum,  and  another 
mortgage  upon  different  property.  These  securities  were  meant  as  a  sub- 
stitute for  the  former  ones,  and  so  received  by  the  clerk,  who  thereupon, 
without  direction  from  the  Court,  executed  a  satisfaction  of  the  first  mort- 
gage, which  was  entered  of  record.  The  owiiers  of  the  fund,  after  the  death 
of  the  widow,  with  notice  of  all  the  facts,  foreclosed  the  second  mortgage  ia 
the  name  of  the  clerk,  and  had  the  property  sold.  Held,  though  the  dis- 
charge of  the  first  mortgage  was  void,  and  might  have  been  so  treated,  the 
election  of  the  owners  of  the  fund  to  proceed  upon  the  second  was  a  ratifi- 
cation of  the  acts  of  the  clerk,  and  therefore  that  a  bill  did  not  lie  to  fore- 
close the  first  mortgage,  for  the  purpose  of  collecting  the  balance  not  realized 
by  the  first  foreclosure.     Ibid. 

Money  was  paid  into  court  in  a  partition  suit,  and  loaned  by  the  clerk  on 
mortgage  to  A.  and  others.  The  lands  mortgaged  were  sold  by  A.  and  his 
co-mortgagors  to  B.,  who  had  notice  of  the  mortgage,  and  that  it  was  given 
to  the  clerk  officially,  and  who  reserved  on  that  account  a  part  of  the  pur- 

VOL.  I.  45 


530  THE    LAW    OF    MORTGAGES.  [CH.  XVII. 

58.  Equity  may  revive  a  mortgage,  the  discharge  of  which 
has  been  procured  by  fraud  of  the  mortgagor.  Thus,  having 
made  two  mortgages  of  the  same  land,  the  mortgagor  pro- 
cured a  discharge  of  the  first  by  fraudulent  representations, 
and  gave  a  new  mortgage,  the  mortgagee  being  ignorant  of 
the  second  incumbrance,  but  the  second  mortgagee  not  being 
party  to  the  fraud.  Held,  upon  a  bill  in  equity  by  the  first 
mortgagee,  the  discharge  should  be  declared  void,  and  a  fore- 
closure decreed.^     So,  where  the   release  of  a  mortgage  is 

1  Barnes  v.  Camack,  1  Barb.  392. 


chase-money,  until  the  mortgagors  should  procure  a  discharge  of  the  mort- 
gage. The  mortgage  was  discharged  by  the  clerk,  without  an  order  of  the 
Court,  on  the  giving  of  a  new  mortgage  by  A.  and  others  on  other  and  less 
valuable  lauds.  A  certificate  of  the  discharge  was  given  to  B.  by  the  regis- 
ter of  deeds  where  it  was  recorded.  B.  paid  A.  and  others  the  reserved 
portion  of  the  purchase-money.  The  clerk  having  died,  his  successor  fore- 
closed the  second  mortgage,  and,  on  a  sale  of  the  premises,  there  was  a  large 
deficiency,  to  supply  Avhicli  the  clerk  filed  a  bill  to  foreclose  the  first  mort- 
gage. Held,  the  clerk  had  no  jjower  to  discharge  the  mortgage  without  an 
order  of  the  Court ;  that,  notice  of  the  mortgage  being  given  to  B.,  and  the 
mortgage  being  given  to  the  clerk,  the  purchaser  was  thereby  put  upon 
inquiry,  from  what  fund  the  investment  was  made,  and  whether  the  clerk 
had  power  to  discharge  the  mortgage  ;  and  that  the  taking  of  the  second 
mortgage  was  no  payment  of  the  first.  As  the  premises  were  laid  out  in  city 
lots,  and  worth  much  more  than  the  mortgage  debt  and  costs,  the  owners  of 
the  equity  of  redemption  were  permitted  by  the  decree  tor  foreclosure  to 
direct  in  what  order  the  lots  should  be  sold.  Walwortii  v.  Farmers',  &c., 
4  Sandf.  Ch.  51.  The  authority  to  discharge  a  mortgage  must  distinctly 
appear;  otherwise  the  cleric  will  not  be  compelled  to  do  it  by  mandamus. 
People  V.  Miner,  32  Barb.  612. 

In  Massachusetts,  (St.  1847,  eh.  195,)  where  the  state  treasurer  is  author- 
ized to  dlacliarye  a  mortgage,  he  may  assign  it,  with  the  same  effect  as  in  other 
cases  of  assignment ;  but  the  State  shall  thereby  incur  no  liability,  express 
or  implied.  In  the  same  State,  (St.  1848,  ch.  151,  §  2,)  where  an  execution 
for  possession  has  issued,  and  is  afterwards  satisfied  by  payment  of  debt  and 
costs  •,  the  mortgagee,  his  executors,  &c.,  shall,  at  the  expense  of  the  mort- 
gagor, enter  on  the  margin  of  the  record  of  the  execution  an  acknowledg- 
ment of  satisfaction,  or  execute  a  deed  of  release,  which  shall  be  recorded, 
with  proper  notes  of  reference  to  the  execution. 


CH.  XVII.]  PAYMENT,    RELEASE,    ETC.  531 

effected  by  compromise,  if  the  consideration  is  avoided,  the 
release  will  be  avoided  also.^  So  where  a  note  and  mortgage 
are  given  up  to  the  mortgagor,  without  payment,  and  in  ox- 
change  for  others,  which  are  worthless,  but  represented  other- 
wise by  the  mortgagor,  and  in  consequence  of  such  represen- 
tation ;  the  mortgagee  may  still  maintain  a  suit  for  fore- 
closure.2 

59.  And,  in  equity,  the  cancellation  of  a  mortgage  on  the 
record  is  only  prima  facie  evidence  of  its  discharge.  It  may 
be  proved  to  have  been  made  by  accident,  mistake,  or  fraud, 
and  the  mortgage  will  then  be  established,  even  against  sub- 
sequent mortgagees  without  notice.^  And  the  cancellation 
of  a  mortgage  upon  the  record  may  be  declared  void,  more 
especially,  where  it  is  made  in  violation  of  the  rights  of  third 
persons.  Thus  a  mortgagor,  having  conveyed  a  part  of  the 
premises,  joined  with  the  purchaser  in  procuring  a  loan  to 
take  up  the  mortgage,  the  purchaser  agreeing  to  take  an 
assignment  of  the  mortgage  for  the  lender's  security,  as 
against  that  part  of  the  land  which  had  not  been  conveyed. 
The  purchaser  ostensibly  advanced  half  the  money,  and  pro- 
cured the  assignment,  but  soon  after,  without  the  lender's 
knowledge  or  assent,  cancelled  it  of  record.  Held,  as  against 
the  lender  the  cancellation  was  void,  and  that  he  might  still 
foreclose  upon  the  portion  not  conveyed,  and  as  against  a 
second  mortgagee,  whose  mortgage  was  made  before  such 
cancellation.^  So  a  father  directed  his  son  to  execute  to  his 
daughter,  for  the  consideration,  expressed  in  the  deed,  of  love 
and  affection,  a  note  secured  by  mortgage  of  the  father's  land, 
which  he  promised  to  convey  to  the  son.  The  father  retained 
possession  of  the  papers,  but  the  mortgage  w^as  recorded. 
Afterwards,  being  dissatisfied  with  the  marriage  of  the  daugh- 
ter, a  minor,  the  father,  without  her  consent,  entered  satisfac- 
tion of  the  mortgage  on  the  record=     Held,  in  a  suit  by  the 

1  Heighway  v.  Pendleton,  15  Ohio,  Cli.    117  ;  Valle'  i-.  Iron,  &c.,  27  Mis. 

735.  455. 

'^  Grimes  v.  Kimball,  3  Allen,  518.  *  King  v.  McViekar,  3  Sandf.  CM. 

8  Robinson  v.  Sampson,  23  Maine,  192 ;  McLean  v.  Lafayette,  &<;.,  3  Mc- 

388 ;  Trenton,  &c.  v.  Woodruff,  1  Green,  Lean,  587. 


532  THE    LAW    OF    MORTGAGES.  [CH.  XVII. 

daughter,  still  a  minor,  that  such  entry  f^hould  be  set  aside, 
and  judgment  rendered  for  the  amount  of  the  note  and  inter- 
est, to  be  satisfied  from  the  land.^  And  a  discharge  upon 
the  record,  to  effect  the  purposes  of  justice,  may  sometimes 
be  construed  as  an  assignment.  Thus  A.  made  one  mort- 
gage to  B.  and  another  to  C.  The  former  was  paid  and  dis- 
charged upon  the  record.  Upon  a  conveyance  of  the  land 
from  A.  to  D.,  both  A.  and  C.  represented  to  D.  that  C.'s 
mortgage  was  paid,  and  C.  discharged  it  upon  the  record. 
C.'s  mortgage  had  been  assigned  to  E.,  but  the  assignment 
was  not  on  record.  Held,  as  against  E.,  B.'s  discharge  oper- 
ated as  an  assignment  of  his  mortgage  to  T>? 

60.  But,  on  the  other  hand,  a  trustee  of  the  separate  estate 
of  a  married  woman,  having  become  seised  in  his  own  right 
of  the  greater  part  of  the  premises,  covered  by  a  mortgage  for 
$20,000,  belonging  to  his  cestui  que  trusty  acknowledged  sat- 
isfaction of  such  mortgage,  and  caused  it  to  be  cancelled  of 
record  ;  and  soon  afterward,  conveyed  to  his  brother  one 
third  of  the  premises,  and  took  back  from  him  his  bond  for 
$20,000,  with  a  mortgage  upon  the  part  so  conveyed  to  him, 
payable  at  the  time  of  payment  of  the  original  bond  and 
mortgage.  This  new  mortgage  the  trustee  substituted  in 
lieu  of  the  cancelled  mortgage,  and  executed  a  declaration 
of  trust,  declaring  that  he  held  the  same  in  trust  for  the  sep- 
arate use  of  his  cestui  que  trust ;  but  the  property  covered  by 
the  substituted  mortgage  turned  out  to  be  an  inadequate 
security  for  the  $20,000.  On  a  bill  filed  by  the  cestui  que 
trust,  alleging  that  the  original  bond  and  mortgage  had  never 
been  satisfied  or  paid,  that  the  cancelment  of  that  mortgage 
was  without  her  knowledge  or  assent,  and  a  breach  of  trust ; 
held,  thci  satisfaction  of  the  first  mortgage,  which  was  pro- 
duced in  evidence,  was  primd  facie  proof  of  its  discharge ; 
that  the  complainant  had  not  shown  that  the  second  mort- 
gage was  not  substituted  with  her  assent,  but  that  a  sale 
should  take  place  of  so  much  of  the  premises  as  were  in- 
cluded in  the  second  mortgage.^ 

1  Malktt  V.  Page,  8  Ind.  364.  ^  Stuart  i-.  Kissam,  11  Barb.  271. 

'^  Wilson  V.  Kimball,  7  Fost.  300. 


CH.   XVII.]  PAYMENT,   RELEASE,   ETC.  533 

61.  Equity  will  also  interfere  in  behalf  of  a  creditor,  where 
the  debtor  unfairly  seeks  to  avail  himself  of  the  discharge  of 
a  mortgage,  in  avoiding  payment  of  the  debt  secured.  Thus 
a  bill  of  discovery  alleged  that  the  plaintiff,  holding  a  note, 
made  by  the  defendant,  secured  by  mortgage,  in  order  to 
enable  the  defendant  to  procure  a  loan  on  a  first  mortgage 
of  the  land,  at  his  request,  and  with  the  understanding  and 
upon  the  promise  that  the  plaintiff  should  be  paid  from  the 
money  thus  obtained,  executed  a  release  of  the  mortgage; 
that  the  plaintiff  afterwards  brought  a  suit  on  the  note, 
against  which  the  defence  of  payment  had  been  set  up  by 
way  of  specification  ;  that  the  defendant  had  often  stated 
his  intention  to  prove  such  payment  by  the  release  of  the 
mortgage ;  and  that  the  plaintiff  had  no  means  of  proving 
these  facts,  and  was  advised  that  he  could  not  safely  proceed 
to  trial  without  a  discovery.  Held,  the  plaintiff  was  entitled 
to  a  discovery.^  So  in  case  of  a  note  against  two  persons, 
secured  by  mortgage,  if  the  payee  acknowledges  payment 
from  the  promisors  upon  the  margin  of  the  record,  and  dis- 
charges the  mortgage ;  evidence  is  admissible  to  control 
such  acknowledgment,  of  the  acts  and  declarations  of  one 
of  the  promisors,  in  an  action  upon  the  note  against  the 
other.2 

1  Haskell  v.  Haskell,  8  Cush.  540.  '^  Patch  v.  King,  29  Maine,  448. 

45* 


534 


THE    LAW    OF    MORTGAGES. 


[CH.  xviri. 


CHAPTER   XVIIL 


ASSrcfNMENT    OF    A    MORTGAGE. 


1.  Wliat  constitutes  an  assignment, 
and  what  a  discharge,  of  a  mortgage. 

2.  11,  20.  Interest  and  intention  of 
the  parties. 

3.  Party  having  a  right  to  an  assign- 
ment.    Intervening  liens,  &c. 

6.  ^V''arranty,  or  quitclaim  deed, 
wliether  an  assignment. 

12.  Cases  of  dower. 

13.  Conveyance  to  a  trustee. 

14.  Payment  by  mortgagor,  after  his 
equity  is  sold. 

15.  Cases  of  suretijship. 

18.  Conveyance  of  part  of  the  land. 

20.  Joint  mortgagors,  —  separation 
of  joint  interest. 

21.  In  reference  to  parties  who  have 
parted  irith  nothing. 

22.  Miscellaneous  cases. 

35.  Mortgage  of  indemnity ;  when 
the  law  implies  an  assignment  of  such 
mortgage. 


87.  C!onditional  assignment  of  a 
mortgage,  whether  itself  a  mortgage. 

42.  Form  of  assignment. 

4i3.  What  passes  b}' an  assignment; 
whether  a  mortgagee,  after  assign- 
ment, can  release  or  bring  an  action. 

55.  Whether  he  shall  be  party  to  a 
suit  for  redemption  or  foreclosure. 

57.  Consideration  paid  by  the  as- 
signee, whether  material. 

60.  For  what  amount  the  mortgagor 
is  liable  to  the  assignee.  Whetlier  the 
latter  is  bound  by  previous  payments, 
set-offs,  &c. 

73.  Guaranty  by  tlie  mortgagee, 
whether  implied  from  assignment. 

74.  Effect  of  the  mortgagor's  join- 
ing in  the  assignment. 

80.  Recording  of  an  assignment. 
How  far  an  assignee's  title  may  be 
affected  by  fraud  or  notice. 


1.  In  speaking  of  the  nature  of  a  mortgagee's  interest  in 
the  land,  as  connected  with  the  personal  obligation  or  liabil- 
ity which  the  mortgage  is  made  to  secure,  it  has  been  inci- 
dentally stated  that  mortgages  are  assignable.  The  question 
has  been  considered  at  length,  (ch.  11,)  how  far  a  transfer  of 
the  debt  has  the  effect  of  passing  the  mortgage.  It  now  re- 
mains to  speak  more  specifically  of  the  express  assignment 
of  the  mortgage  itself,  and  of  implied  assignments,  growing 
out  of  transfers  and  relations  between  the  parties,  which,  in 
form  or  name,  do  not  import  to  involve  any  direct  substitu- 
tion of  one  party  for  another,  but  are  invested  with  this  effect 
by  operation  of  law.  The  latter  branch  of  the  subject,  as 
being  more  immediately  connected  with  that  of  disc/targe  or 
extinffuishment,  which  was  treated  in  the  last  chapter,  will  be 
first  considered. 


CH.   XVIII.J  ASSIGNMENT.  535 

2.  Usually,  where  a  claim  secured  by  mortgage  is  trans- 
ferred, the  mortgage  is  expressly  assigned,  as  part  of  the 
same  transaction  ;  and,  under  these  circumstances,  the  rights 
of  the  parties  are  simple  and  well  defined.  It  is  held  in  gen- 
eral, that,  when  a  mortgagee  makes  a  deed  of  assignment 
upon  the  back  of  the  mortgage  deed,  or  by  a  separate  instru- 
ment referring  to  it,  the  assignee  is  put  in  the  place  of  the 
mortgagee,  to  all  intents  and  purposes,  unless  a  different  in- 
tention is  apparent  from  the  contract.^  And  the  assignee 
may  himself  assign,  wdth  the  same  effect.^  Most  of  the 
questions  upon  the  subject,  as  has  been  suggested,  grow  out 
of  contracts  or  conveyances,  w^hich  are  claimed  to  operate  as 
implied  assignments,  or  assignments  by  operation  of  law.  It 
will  be  seen,  that  the  inquiry  usually  arising  in  this  class  of 
case's  is,  whether  a  certain  transaction  shall  operate  as  an 
assignment  or  a  discharge  of  the  mortgage ;  and  the  general 
rule  upon  the  subject  is,  that  the  intention  or  interest  of  the 
parties,  so  far  as  such  intention  was  an  innocent  one,  or  more 
generally  the  interest  and  rights  of  third  persons,  connected 
in  relation  to  the  land  with  one  or  both  of  the  parties,  will 
control  the  literal  import  of  the  words  used  ;  more  especially, 
where  there  is  any  fraud  in  the  case.-"  In  general,  only  act- 
ual payment  or  an  express  release  extinguishes  the  mort- 
gage, where  equity  requires  its  continuance.^  The  question 
turns  upon  the  intention  at  the  time.^  It  is  said,  "  Equity  («) 
will  sometimes  keep  alive  a  mortgage  which  has  been  sub- 
stantially satisfied ;  but  it  is  always  for  the  advancement 

1  Hills  V.  Eliot,  16  Mass.  30,  31.  Barb.  339  ;    Mallory  v.  Hitchcock,  29 

2  Hoitt  V.  Webb,  36  N.  li.  158.  Conn.  127;  Post  v.  Tradesmen's,  &c., 
'^  See  Wells  v.  Morse,  11  Verm.  17  ;     2S  lb.  420;  New  FmglanJ,  &c.  v.  Mer- 

Robinson    v.    Leavitt,    7    N.    H.    100;  riam,  2  Allen,  390;  Heath  ^^  West,  6 

Campbell  v.  Knights,  11  Sliepl.  332;  Fost.  191;    Hutchins  v.   Carleton,   19 

Hatch  r.  Kimball,  2  Shepl.  9 ;  4,  146 ;  N.  H.  487  ■.  Wallace  v.  Blair,  1  Grant, 

Helmbold  r.  Man,  4  Whart.  410;  Slo-  (Penn.)  75;   Wickersham   v.    Reeves, 

cum  I'.  Catlin,  22  Verm.  137  ;  Eaton  v.  1  Clarke,  (Iowa,)  413  ;  Howe  v.  Wood- 

Simonds.  14  Pick.  104:  Holden  v.  Pike,  ruff,  12  Ind.  214.;  Spencer  v.  Ayrault, 

24  Maine,  427;    Duncan  v.  Drury,  9  10  N.  Y.  {6  Seld.)  202;  Robinson  v. 

Barr,  332  ;   Van  Wagenen   t\   Brown,  Urquhart,  1  Beasl.  515. 

2  Dutch.  196  ;  Mickles  v.  Townsend,  *  Ladd  v.  Wiggin,  36  N.  II.  421. 

18  N.  y.  582 ;  Champney  v.  Coope,  34  ^  Cliampney  v.  Coope,  34  Barb.  389. 

(a)  The  same  rule  seems  to  be  generally  recognized  at  law. 


536  THE   LAAV    OF   MORTGAGES.  [CII.   XVIII. 

of  justice,  and  never  to  aid  in  the  perpetration  of  a  fraud, 
through  the  forms  of  law."  ^  It  is  also  said,^  "  Where  there 
is  no  direct  proof  of  the  intention,  it  may  be  derived  from 
various  circumstances,  and  one  of  those  is  the  interest  of  the 
party  to  merge  his  security,  or  to  keep  it  alive.  But  that 
is  only  one  circumstance,  and  it  may  be  repelled  by  others. 
The  party  may  intend  to  merge,  upon  a  mistaken  view  of 
his  interest.  He  may  judge  erroneously  when  he  knows  all 
the  facts.;  and  he  may  err  exceedingly  in  regard  to  the  law 
as  applicable  to  what  he  is  doing.  But  I  am  not  aware  of 
any  principle  upon  which  he  can  be  saved  from  the  conse- 
quences of  a  merger,  where  his  intent  is  clear,  although,  by 
a  mistake  of  the  law,  he  supposes  he  will  obtain  advantages, 
which  the  law,  correctly  applied,  entirely  cuts  off."  [b) 

1  Per  Gridley,  J  ,  McGiven  !'.  AVliee-        -  Loomer   v.  Wheelright,  3  Sandf. 
lock,  7  Barb.  ^9 ;  liincliman  v.  Emans,     Ch.  157 :  ace.  34  Barb.  339. 
Saxton,  100. 

(h)  A  daughter  took  by  inheritance  certain  estates  of  her  deceased  father, 
and  also  became  entitled,  under  his  marriage  settlement,  to  a  sum  which  the 
trustees  of  the  settlement  had  lent  hiin  on  mortgage  of  the  estates.  The 
daughter  by  deed  charged  the  estates,  and  the  sum  secured  on  them,  with  an 
annuity,  and  otherwise  indicaied  that  she  intended  the  mortgage  should  be 
kept  alive,  at  least  for  the  purpose  of  securing  the  annuity.  Soon  afterwards 
she  executed  a  will,  devising  the  estates,  after  payment  of  her  own  debts, 
and  settlement  of  her  father's  affairs,  but  not  disposing  of  the  residuary  per- 
sonal estate.  Held,  as  against  her  next  of  kin,  the  incumbrance  created  by 
her  father  merged  in  the  estates.     Swabey  v.  Swabey,  15  Sim.  106. 

On  the  •20ih  of  August,  1800,  a  mortgage  was  made  to  secure  the  sura  of 
S2,500,  payable  in  one  year.  In  1801,  a  creditor  of  the  mortgagor  caused 
his  equity  of  redemption  to  be  sold  on  execution,  and  himself  became  the 
purciiaser.  In  December,  1806,  the  creditor  paid  and  took  an  assignment 
of  the  mortgagee's  bond  and  mortgage,  and,  in  January-,  1811,  conveyed  the 
whole  estate  by  warranty  deed  for  .$7,500.  In  IMarch,  1810,  the  creditor 
assigned  the  bond  and  mortgage  as  security.  The  assignment  was  acknowl- 
edged after  the  deed  of  warrant)-,  and  the  purchaser  under  that  deed,  in  his 
answer,  stated  his  belief  that  it  was  also  mado.  after  that  deed.  Held,  it  was 
the  intention  of  the  creditor  to  extinguish  the  mortgage,  as  he  could  have  no 
object  in  kee|)ing  it  alive,  and  the  bill  against  the  purchaser  was  dismissed. 
Gardner  i\  Astor,  3  Johns.  Ch.  53. 

The  purchaser  of  land  mortgaged  paid  the  mortgage,  and  no  intention 


CH.  XVIII.]  ASSIGNMENT.  537 

3.  The  further  general  rule  is  laid  down,  that,  where  a  dis- 
charge is  given  to  a  party  who  has  a  rig'ht  to  an  assig-7ime?it, 
the  law  will  construe  it  to  be  an  assignment,  and  enable  him 
to  maintain  an  action,  and  recover  conditional  judgment  for 
the  sum  paid.^  And,  if  one  of  the  mortgagees  purchases  at 
a  sale  under  a  subsequent  judgment,  there  is  no  merger.^ 
So  if  the  mortgagee  purchases  the  equity  of  redemption,  at 
a  public  sale  by  the  mortgagor's  administrator,  there  is  no 
merger  either  at  law  or  in  equity .-^  (c)  So  in  case  of  a  creditor 
of  the  mortgagor,  who  levies  upon  the  equity  of  redemption, 
and  then  pays  the  mortgage.*  So  if  the  holder  of  the  equity 
of  redemption  takes  an  assignment  of  a  forfeited  mortgage, 
he  may  defend  his  possession,  though  obtained  without  suit 
or  consent  of  the  mortgagor.^ 

4.  But,  in  general,  to  constitute  an  assignment,  there  must 
be  a  record  title.  Thus  a  tenant,  holding  under  an  execu- 
tion sale  of  an  equity,  cannot  be  ousted  by  one  having  no 
record  title  to  the  equity,  though  he  has  paid  off  the  mort- 
gage.*^ So  the  title  of  the  party  making  the  payment  must 
be  one  subsisting  at  the  time.  Thus,  a  decree  of  foreclosure 
having  been  rendered  against  a  mortgagor,  and  being  about 
to  expire,  the  plaintiff  agreed  with  the  mortgagor  to  advance 

1  Drew  V.  Rust,  36  N.  H.  335.     See         *  Warren  v.  Warren,  30  Verm.  530. 
Weld  V.  Sabin,  '20  N.  H.  533.  5  Winslow  v.  M'Call,  32  Barb.  241. 

2  Wallace  v.  Blair,  1  Grant,  75.  '^  Wilson  v.  Soper,  44  Maine,  118. 
"  Walker  v.  Baxter,  26  Verm.  710. 


was  then  disclosed  to  keep  the  mortgage  alive,  nor  any  contract  made  for  an 
assignment  of  it.  Eighteen  years  after  such  payment,  the  purchaser  con- 
veyed the  land  with  warranty,  and  afterwards,  without  any  new  considera- 
tion, the  second  purchaser  obtained  an  as.^ignment  of  the  mortgage  from  the 
mortgagee  to  the  first  purchaser.  Held,  the  mortgage  was  discharged  by  the 
payment,  and  nothing  passed  by  the  assignment.  Given  v.  Marr,  27  Maine, 
212. 

(c)  A  purchaser,  at  an  execution  sale,  of  a  mortgaged  estate,  taking  an 
assignment  of  the  mortgage,  cannot  claim  the  amount  paid  for  such  assign- 
ment from  the  estate  of  the  mortgagor  assigned  for  the  benefit  of  creditors. 
Cooley's,  &c.,  1  Grant,  401. 


538  THE    LAW    OF   MORTGAGES.  [CH.  XVIII. 

the  amount  of  the  decree,  in  consideration  of  which  the  mort- 
gagor gave  him  a  note  for  usm-ious  interest  upon  the  ad- 
vance, secured  by  mortgage,  and  also  collateral  security  for 
the  sum  to  be  advanced.  The  plaintiff  paid  the  prior  mort- 
gage. Held,  he  did  not  thereby  become  subrogated  to  the 
mortgagee  in  reference  to  intervening  incumbrancers.  His 
payment  was  voluntary,  not  compulsory.  "  Instead  of  be- 
ing compelled  to  pay  the  money  to  protect  his  interest  under 
his  mortgage,  he  obtained  his  mortgage  merely  in  conse- 
quence of  his  agreement  to  pay  the  money  and  to  protect 
him  in  so  doing.^ 

5.  And  payment  by  the  mortgagor,  or  other  party  for  whose 
benefit  the  mortgage  was  given,  will  extinguish  it,  notwith- 
standing an  agreement  to  keep  it  alive  and  assign  it.^ 

6.  In  New  York,  it  has  been  held  that  a  warranty  deed 
of  the  land  does  not  pass  the  mortgagee's  title,  but  that 
he  may  foreclose,  though  he  have  thus  conveyed.  So,  if 
he  have  conveyed  only  a  part  of  the  premises,  that  he  may 
foreclose  for  the  whole  under  a  power  of  sale,  and  may  him- 
self become  the  purchaser.'^  But  it  has  since  been  held  in  the 
same  State,  that,  although  a  sale  made  by  a  mortgagee  is 
irregular,  his  deed  operates  as  an  assignment  of  the  mort- 
gage.^ The  Court  say,^  "  The  deed  was  sufficient,  at  least, 
to  transfer  to  the  defendant  the  money  due  upon  the  mort- 
gage. The  interest  on  the  mortgage  was  in  arrear,  and  the 
mortgagees  were  entitled  to  foreclose,  or  to  sell  under  the 
statute.  The  defendant  therefore  occupies  the  position  of  a 
mortgagee  in  possession  of  the  premises  mortgaged ;  the 
money  secured  being  due  and  unpaid.  Although  since  the 
revised  statutes  a  mortgagee  cannot  obtain  possession  at 
law,  on  default  of  payment,  there  is  no  doubt  that  he  may 
retain  the  possession  until  redemption,  if  he  succeed  in  pro- 
curing  it  by   the    mortgagor's    consent,    or   in    any   lawful 

1  Downer  v.  Wilson,  33  Verm.  1,  5,        *  Olmsted   v.  Elder,  2  Sandf.  325; 

6-  ^  ace.  Hill  V.  More,  40  Maine,  515. 
-  Cliampneyr.  Coope,  34  Barb.  539.         ^  Olmsted  v.   Elder,    2    Sandf.   327. 

'*  Wilson  V.  Troup,  2  Cow.  l'J5.  See  James  v.  Morey,  2  Cow.  240. 


CH.  XVIII.]  ASSIGNMENT.-  "  539 

mode."  And,  in  Massachusetts,  a  warranty  deed  of  the 
mortgagee,  after  entering  for  foreclosure,  passt^  the  mortgage, 
although  the  notes  are  not  assigned,  (d)  And  if  the  assignee 
produces  them  at  the  trial,  and  offers  to  file  them,  he  may- 
have  a  conditional  judgment.^  So  a  conveyance  by  the 
mortgagee  of  part  of  the  land  does  not  discharge  that  part 
from  the  mortgage.^ 

7.  A  quitclaim  deed  from  the  mortgagee  or  his  administra- 
tor to  a  third  person,  more  especially  where  the  mortgage  is 
accompanied  by  no  personal  security,  or  if  accompanied  by 
a  delivery  of  the  mortgage  notes,  operates  as  an  assignment 
of  the  mortgage.  Or,  it  seems,  if  the  deed  includes  but 
a  part  of  the  premises  mortgaged,  an  assignment  pro  tanto. 
But  the  mortgagee,  it  is  held,  must  be  in  possession.^  Thus, 
where  the  mortgagor,  remaining  in  possession,  conveyed  the 
land,  and  afterwards  conveyed  it  a  second  time ;  and  subse- 
quently the  mortgagee,  who,  before  the  second  deed  of  the 
mortgagor,  had  recovered  judgment  and  taken  possession 
under  his  mortgage,  in  an  action  against  the  mortgagor, 
conveyed  to  the  second  purchaser  by  a  quitclaim  deed  in 
the  usual  form,  with  a  warranty  against  himself  and  all 
claiming  under  him ;  held,  this  conveyance  did  not  operate 
as  an  extinguishment  of  the  mortgage,  thereby  giving  pri- 
ority of  title  to  the  first  purchaser  from  the  mortgagor,  but 
as  an  assignment  of  the  mortgage.  Shaw,  C.  J.,  remarked  : 
"  If  this  had  been  a  deed  in  the  usual  form  of  words,  '  give, 
grant,  sell,  and  convey,  release  and  quitclaim,'  and  if  it  is 
apparent  that  it  was  the  intention  of  the  releasor  to  transfer, 
and  of  the  releasee  to  receive,  the  legal  seisin,  title,  and  in- 

1  Ruggles  V.  Barton,  13  Gray,  506.  lamer  v.  Langdon,  3  Wms.  32;  Gro- 

2  Wynian  v.  Hooper,  "2  Gray,  141.  ver  v.  Thatcher,   4   Gray,  526 ;   Wy- 

3  Dorkrey  v.  Noble,  8  Greenl.  278 ;  man  v.  Hooper,  2  Gray,  14(3.  See 
Dixfield  V.  Newton,  41  Maine,  221;  New  England,  &c.  y.  Merriam,  2  Allen, 
Furbush  v.  Goodwin,  5  Fost.  425 ;  Col-  390. 


(d)  In  New  Hampshire,  it  is  held  that  a  conveyance  of  tlie  land  without 
a  transfer  of  the  mortgage  note  is  effectual  against  all  but  the  mortgagor ; 
and  he  has  merely  a  right  to  redeem.     Hutchins  v.  Carleton,  19  N.  H.  487. 


540  THE   IiiA.W    OF   MORTGAGES.  [CH.    XVIIL 

terest  in  the  estate,  and  not  to  cancel  and  extinguish  the  mort- 
o-age,  the  deed  would  so  have  operated,  to  pass  the  mortgagee's 
leoal  title.  And  we  are  are  of  opinion  that  such  is  the  effect 
of  the  deed  in  the  present  case."  ^  He  further  remarks,^ 
upon  the  point  of  extinguishment:  —  "  The  mortgagee  had 
a  perfect  right  and  legal  power  to  assign  his  mortgage,  if  he 
thought  fit,  and  to  give  to  his  assignee  the  same  right  which 
he  held  himself,  that  is,  to  receive  the  amount  secured  by 
the  mortgage,  from  any  person  entitled  by  contract  or  by 
operation  of  law  to  redeem,  and  to  hold  the  legal  estate  in 
security  of  the  debt  till  it  should  be  so  paid.  And  we  can 
see  no  reason  why  a  purchaser  of  the  equity  of  redemption, 
whether  of  a  part  or  the  whole  of  the  mortgaged  premises,  is 
in  any  respect  disabled  from  becoming  such  assignee.  He 
may  consider  his  equity  of  redemption  of  no  value  or  of 
small  value,  or  the  title  to  it  invalid  or  doubtful ;  and  can 
there  be  any  reason  in  law,  why  he  who  has  the  most  urgent 
occasion  for  making  such  a  purchase  to  protect  his  own  in- 
terest, should  be  disabled  from  doing  so,  and  be  placed,  in 
this  respect,  in  a  worse  condition  than  a  stranger  ?  In  order 
to  effect  a  merger  at  law,  the  right  previously  existing  in  an 
individual,  and  the  right  subsequently  acquired,  in  order  to 
coalesce  and  merge,  must  be  precisely  coextensive,  must  be 
acquired  and  held  in  the  same  right,  and  there  must  be  no 
right  outstanding  in  a  third  person  to  intervene  between 
the  right  held  and  the  right  acquired.  The  case  we  are  con- 
sidering supposes  that  a  third  person  has  by  operation  of 
law,  by  purchase  or  by  attachment,  acquired  certain  rights  or 
claims  to  the  equity  of  redemption,  which  do  not  extend  to 
the  mortgage.  When,  therefore,  the  equity  of  redemption 
by  purchase,  and  the  mortgage  by  assignment,  vest  in  the 
same  individual,  they  do  not  coalesce  or  merge,  if  there  be 
in  a  third  person  a  right  of  dower,  a  right  acquired  by  pur- 
chase, or  a  real  lien  by  attachment,  intervening  between  the 

1  Hunt  V.  Hunt,  14  Pick.  374,  380 ;     Macomber    v.   Mutual,   &c.,   8   Cusli. 
Crooker  v.  Jewell,  31  Maine,  306.  See     136,  137. 

2  14  Pick.  383,  384,  385. 


CH.    XVIII.]  ASSIGNMENT.  541 

mortgage  and  the  equity,  (e)  We  think  the  present  case  is 
entirely  within  these  principles.  It  is  apparent  from  the 
form  of  the  deed  of  quitclaim,  from  the  qualified  covenant 
against  incumbrances,  and  from  the  manifest  object  of  the 
parties,  that  it  was  the  intent  of  the  mortgagee  not  to  dis- 
charge the  mortgage,  but  to  sell  and  transfer  his  legal  title  in 
the  mortgaged  premises,  by  the  species  of  conveyance  long 
known  and  used  in  this  Commonwealth,  when  the  intent  is 
to  pass  an  estate  without  warranty." 

8.  So  if  A.  B.,  the  purchaser  of  an  estate  subject  to  two 
mortgages,  buys  and  takes  an  assignment  of  the  prior  one, 
and  then  gives  a  quitclaim  deed  of  the  land,  delivering  to 
the  purchaser  the  note  and  mortgage  ;  the  estate  passes,  as 
against  the  second  mortgagee,  although  upon  the  face  of  the 
note  the  words  are  written,  "  cancelled  by  A.  B.,"  there  be- 
ing no  other  evidence  of  payment.^ 

9.  So,  after  attachment  of  an  equity  of  redemption,  the 
mortgage  debt  was  paid  by  a  stranger,  to  whom  the  mort- 
gagee, with  the  mortgagor's  consent,  gave  a  quitclaim  deed 

1  Bell  V.  Woodward,  34  N.  H.  90.     See  5  Mich.  515 ;  Evans  v.  Kimball,  1 
Allen,  240. 


(e)  Of  course  there  can  be  no  merger  for  the  benefit  of  a  third  party 
whose  title  is  subsequent  to  both  the  estates  which  coalesce.  Whitcomb  v. 
Jacobs,  9  Gray,  255. 

A  quitclaim  deed,  without  consideration,  from  mortgagor  to  mortgagee, 
cannot  affect  a  previous  attachment  of  the  equity  of  redemption.  And  if 
the  mortgagee  afterwards  purchase  a  claim  against  the  mortgagor,  and  cause 
the  equity  to  be  sold  on  execution,  he  cannot  set  up  his  deed  against  the 
execution  purchaser.  Drew  v.  Rust,  3G  N.  H.  335.  See  Downer  v.  Wil- 
son, 33  Verm.  1  ;  New  England,  &c.  v.  Merriam,  2  Allen,  390  ;  Bullard  v. 
Leach,  1  Wms.  491. 

Where  a  mortgagee  assigns  the  mortgage,  and  auerwards  takes  a  quit- 
claim deed  liom  the  mortgagor,  the  mortgage  title  does  not  merge  in  the 
fee ;  but  the  mortgagee  becomes  mortgagor,  and  the  assignee  mortgagee. 
Pratt  V.  Bank,  &c.,  10  Verm.  293.  If,  after  such  transfer,  the  mortgagee 
himself  mortgage  the  land,  the  assignment  not  having  been  recorded,  the 
title  of  the  assignee  will  prevail  over  lliat  of  the  mortgagee.     Ibid. 

VOL.  I.  46 


542  THE    LAW    OF    MORTGAGES.  [CH.  XVIII. 

of  the  land.  The  attaching  creditor  recovered  judgment,  and 
levied  his  execution  upon  the  land,  as  upon  unincumbered  real 
estate.  In  a  writ  of  entry  by  the  heirs  of  the  judgment  cred- 
itor, against  one  claiming  under  the  grantee  of  the  mortgagee, 
it  was  held,  that  the  deed  operated  not  as  an  extinguishment, 
but  a  transfer  of  the  legal  title ;  that  the  judgment  creditor 
by  his  levy  did  not  acquire  such  title,  but  at  most  only  an 
equity  of  redemption,  which  might  be  the  foundation  of  a 
bill  to  redeem  ;  but  that  this  action  could  not  be  maintained.^ 
So  two  of  the  plaintiffs,  who  were  purchasers  of  an  equity 
of  redemption,  contracted  with  one  Richardson  to  sell  him 
the  land  for  $5,000,  he  providing  for  the  redemption  and  for 
payment  of  the  mortgage  debt,  which  was  about  $3,000, 
and  securing  the  surplus  to  the  plaintiffs ;  the  defendants, 
the  mortgagees,  having  agreed  to  convey  the  land  to  Rich- 
ardson, if  not  redeemed,  and  to  pay  him  the  amount  due  for 
redemption,  if  it  should  be  seasonably  demanded.  The 
defendants  gave  a  bond  to  Richardson,  to  secure  their  agree- 
ment, and  he  paid  them  the  mortgage  debt.  The  induce- 
ment to  the  foregoing  transaction  was,  that  the  third  plaintiff 
was  absent  at  sea,  and  therefore  no  title  could  be  made  to 
Richardson  except  through  the  defendants ;  and  also  an 
apprehension  by  the  defendants,  that  the  mortgagors  might 
have  a  right  to  redeem  without  the  plaintiffs'  consent. 
Hence  it  was  agreed  that  Richardson  should  take  his  title 
from  the  defendants  after  a  foreclosure  of  their  mortgage. 
Held,  the  intention  and  effect  of  the  transaction  was,  that 
the  defendants  assigned  the  mortgage  to  Richardson,  sub- 
ject to  the  remaining  equity,  the  plaintiffs  releasing  their 
equity  of  redemption  on  being  paid  or  secured  their  shares 
of  the  surplus  over  the  mortgage  debt ;  that  the  bargain  be- 
tween two  of  the  plaintiffs  and  Richardson  did  not  depend 
upon  the  consent  of  the  other  plaintiff,  as  the  title  was  to 
come  through  the  defendants  ;  that  Richardson's  payment 
to  the  defendants  must  be  considered  as  made  for  himself, 

1  Freeman  v.  McGaw,  15  Pick.  82. 


CH.  XVIII.]  ASSIGNMENT.  543 

upon  a  purchase  of  the  land,  not  in  discharge  of  the  mort- 
gage, which  would  defeat  the  object ;  that  although  the  ab- 
sent plaintiff' had  no  opportunity  to  assent  to  the  bargain  or 
otherwise,  yet,  as  the  other  plaintiffs  were  unable  to  redeem, 
the  transaction  was  the  best  that  could  be  done  for  him  in 
preventing  a  foreclosure  ;  and  that  the  plaintiffs  could  not 
maintain  a  bill  for  redemption.^ 

10.  Although,  in  general,  the  question  of  merger  is  one  of 
intent;  yet,  where  A.  and  B.  held  different  portions  of  land 
subject  to  mortgage,  and  A.  paid  the  debt  and  took  a  quit- 
claim deed  from  the  administrator  of  the  mortgagee,  in  an 
action  by  A.  against  B.,  it  was  held  error  to  leave  it  to  the  jury 
whether  a  cancellation  of  the  mortgage  was  intended.  As 
matter  of  law,  A.  succeeded  to  the  rights  of  the  mortgagee.'-^ 

11.  In  addition  to  the  direct  transfers  from  the  mortgagee, 
which,  though  not  made  in  the  form  of  assignments,  have 
still  been  construed  as  such,  there  is  a  variety  of  cases,  in 
which  other  transactions  between  the  parties  to  the  mortgage, 
or  between  one  or  both  of  them  and  third  persons,  have  been 
brought  in  question,  with  reference  to  the  point  of  assign- 
ment on  the  one  hand  or  discharge  on  the  other.  Upon  this 
subject  it  is  said:^  —  "  Whether  a  given  transaction  shall  be 
held,  in  legal  effect,  to  operate  as  a  payment  and  discharge, 
which  extinguishes  the  mortgage,  or  as  an  assignment,  which 
preserves  and  keeps  it  on  foot,  does  not  so  much  depend 
upon  the  form  of  words  used,  as  upon  the  relation  subsisting 
between  the  parties  advancing  the  money,  and  the  party  exe- 
cuting the  transfer  or  release,  and  their  relative  duties.  If  the 
money  is  advanced  by  one  whose  duty  it  is,  by  contract  or 
otherwise,  to  pay  and  cancel  the  mortgage,  and  relieve  the 
mortgaged  premises  of  the  lien,  a  duty  in  the  proper  perform- 
ance of  which  others  have  an  interest,  it  shall  be  held  to  be 
a  release,  and  not  an  assignment,  although  in  form  it  pur- 

1  Howard  v.  Agry,  9  Mass.  179.  Beav.  188 ;  Coote,  461 ;  Vanclerkemp 

2  CoUamer  ».  Langdon,  3  Wms.  32.  v.    Shelton,    11    Paige,    28;    Knicker- 

3  Per  Sliaw,  C.  J.,  Brown  v.  Lap-  backer  v.  Boutwell,  2  Sandf.  Cli.  319  ; 
ham,  3  Cush.  554,  555  ;  Tyler  v.  Lake,  Cutler  v.  Lincoln,  3  Cusli.  125  ;  Kin- 
4  Sim.  351 ;  Aldridge  v.  Westbrook,  5  ley  v.  Hill,  4  Watts  &  S.  426. 


544  THE   LAW   OF  MORTGAGES.  [CH.  XVIII. 

ports  to  be  an  assignment.  (/)  When  no  such  controlling 
obligation  or  duty  exists,  such  an  assignment  shall  be  held 
to  constitute  an  extinguishment  or  an  assignment,  according 
to  the  intent  of  the  parties  ;  and  their  respective  interests  in 
the  subject  will  have  a  strong  bearing  upon  the  question  of 
such  intent."  So,  it  is  said,  "  the  spirit  of  the  cases  seems 
to  be  this :  that  where  the  tenant  in  possession  enters  by- 
virtue  of  a  purchase  from  the  mortgagor,  then  the  subsequent 
purchase  of  the  mortgage  by  him  is  an  extinguishment."  ^ 
So,  when  a  mortgagor  redeems,  it  should  always  be  con- 
strued as  a  payment,  he  being  personally  liable  for  the  debt. 
But  when  his  vendee  redeems,  who  is  not  personally  liable, 
and  there  is  an  intervening  mortgage  between  the  one  re- 
deemed by  him  and  his  equity  of  redemption,  the  same  rule 
should  prevail  as  in  the  case  of  a  redemption  by  a  subsequent 
mortgagor.^  So,  where  a  mortgagor  boiTows  money  to  pay 
off  a  mortgage,  and  gives  a  second  mortgage  therefor,  and 
the  first  is  cancelled  ;  the  second  mortgagee  has  no  equity  to 
revive  and  be  subrogated  to  the  former  mortgage,  in  order 
to  overreach  an  intervening  lien.^ 

12,  The  questions  referred  to  have  sometimes  arisen  in 
connection  with  a  claim  of  dower  in  mortgaged  estate. 
Thus,  where  dower  was  claimed  in  such  a  mortgaged  estate, 
upon  the  ground  that  the  mortgage  had  been  assigned  to  the 
owner  of  the  equity,  and  thereby  extinguished,  it  was  said 
by  the  Court,  "  When  any  right,  estate,  or  interest  intervenes 
between  the  particular  and  the  general  estate,  which  are  thus 
united,  no  coalescence  takes  place,  but  each  remains  distinct. 
If  the  plaintiff  had  the  right  of  dower  claimed,  it  was  a  real 
interest  in  the  estate  intervening  between  the  mortgage  and 
the  general  right  of  redemption,  which  prevented  a  merger 
by  the  union  of  these  titles."  *     And  where  the  purchaser  of 

1  Per  Savage,  C.  J.,  Coates  v.  Cliee-  ^  Banta  v.  Garmo,  1  Sandf.  CI).  383. 
ver,  1  Cow.  4(50.  *  Brown  v.  Lapliam,  3  Cush.  557. 

'^  Jolinson   V.   .Tolinson,   Walk.    Ch. 
331. 


(/)  See  Garwood  v.  Eldridge,  1  Green,  Ch.  145. 


CH.  xviil]  assignment.  545 

an  equity  of  redemption,  after  taking  possession,  took  an 
assignment  of  the  mortgage,  and  entered  to  foreclose  ;  held, 
the  widow  of  the  mortgagor  might  elect  to  consider  him  in 
possession  under  the  mortgage,  though  the  entry  was  ineffect- 
ual for  foreclosure  ;  and  that  upon  a  bill  in  equity  to  redeem, 
brought  by  her,  he  was  bound  to  account  for  the  rents  and 
profits  from  the  time  of  assignment,  but  not  for  those  re- 
ceived prior  to  the  assignment.^  (g-) 

13.  A  mortgagee  may  preserve  the  mortgage,  by  taking  a 
conveyance  of  the  equity  of  redemption  to  a  trustee,  declar- 
ing such  to  be  his  purpose.^  (A) 

14.  A  mortgagor,  who  is  compelled  to  pay  the  mortgage 
debt,  after  selling  the  estate  subject  to  the  mortgage,  becomes 
an  equitable  assignee  of  the  mortgage.^  On  the  other  hand, 
if  a  purchaser  of  the  equity  buys  and  takes  an  assignment  of 
a  prior  mortgage,  it  still  subsists  in  his  favor  against  a  sub- 
sequent one,  and  may  be  validly  transferred."^  So  where, 
after  an  execution  sale  of  an  equity  of  redemption,  the  mort- 
gagee entered  under  a  judgment  and  writ  of  possession  for 
condition  broken,  and  before  foreclosure  conveyed  all  his 
interest  in  the  land  to  the  mortgagor ;  in  an  action  by  the 
heirs  of  the  mortgagor  against  parties  claiming  under  the 
execution    purchaser,   held,  the    transfer    by  the    mortgagee 

1  Gibson  v.  Crehore,  5  Pick.  146.  ^  Kinnear  v.  Lowell,  34  Maine,  299. 

-  Bailey  v.  Ricliardson,  15  Eng.  L.         *  Bell  v.  Woodward,  34  N.  H.  90 ; 
&  Eq.  218.  Button  v.  Ives,  5  Mich.  515. 


(g)  A.  mortgaged,  then  married,  then  made  new  mortgages,  for  the  same 
amount,  in  which  his  wife  did  not  join,  the  mortgagees  paying  ofi"  the  old 
mortgages,  and  taking  the  new  as  security  for  that  advance.  Held,  in  equity, 
that  the  first  mortgage  was  not  discharged,  but  should  be  considered  as 
assigned  to  the  second  mortgagees,  who  therefore  held  superior  to  the  home- 
stead right,  and,  also,  the  mortgages  being  recorded,  to  a  subsequent  pur- 
chaser from  A.  and  his  wife.     Swift  v.  Kroemer,  13  Cal.  526. 

(/*)  In  Iowa,  the  acceptance  of  the  legal  title  (apparently  in  trust)  by  a 
mortgagee  (by  tlie  Code,  the  legal  title  remaining  in  the  mortgagor)  does 
not  work  a  merger,  where  none  is  intended,  and  it  is  against  the  interest  of 
the  purchaser.     Wickersham  v.  Reeves,  1  Clarke,  (Iowa,)  413. 
46  * 


546  THE   LAW    OF    MORTGAGES.  [CPI.  XVIII. 

was  an  assignment,  not  an  extinguishment,  of  the  mortgage, 
the  sale  of  the  equity  being  equivalent,  with  reference  to  the 
rio-hts  of  the  parties  to  this  suit,  to  an  absolute  sale  by  the 
mortgagor  himself.^  So  A.  levied  an  execution  on  mortgaged 
land,  after  a  decree  for  foreclosure,  but  before  the  time  limited 
by  the  decree  for  redemption,  and  caused  so  much  thereof  to 
be  set  out  as  would,  in  the  opinion  of  the  appraisers,  amount 
to  the  sum  levied  for  and  the  mortgage  money.  He  then 
procured  from  the  mortgagee  an  assignment  of  his  interest, 
which  he  caused  to  be  recorded  after  the  equity  of  redemp- 
tion had  expired.  Held,  that  he  was  not  under  such  obliga- 
tion to  redeem,  that  the  assignment  must  operate  as  an 
extinguishment  of  the  mortgage,  and  that  he  might  hold  the 
whole  of  the  land  against  the  mortgagor.^  ' 

15.  The  same  point  arises  in  reference  to  the  rights  of  a 
surety  for  the  mortgage  debt.  Thus,  where  the  wife  of  A. 
joined  with  him  in  several  mortgages  of  her  own  land  to 
secure  his  bonds  ;  and,  before  the  death  of  A.,  his  attorney, 
with  funds  furnished  by  him,  paid  the  mortgages,  and  took 
an  assignment  of  them  to  B.,  who  gave  a  certificate  to  A., 
that  he  held  them  in  trust  for  him,  and  subject  to  his  con- 
trol ;  held,  A.  was  the  principal  debtor,  and  his  wife's  land 
stood  in  the  relation  of  surety  for  his  debt ;  that  the  securi- 
ties belonged  to  him  in  equity,  and  the  lands  were  discharged 
from  the  mortgages.^ 

16.  On  the  other  hand,  A.  and  B.,  tenants  in  common, 
mortgaged  to  the  defendant  for  half  the  purchase-money,  the 
other  half  being  paid  by  B.  B.  afterwards  quitclaimed  his 
interest  to  the  defendant,  and  A.  conveyed,  with  notice,  to 
the  plaintiff.  In  a  bill  for  redemption,  held,  the  whole  amount 
of  the  mortgage  must  be  paid  in  order  to  redeem ;  that,  under 
the  circumstances,  B.  was  merely  a  surety  for  A.,  and  the 
mortgage  was  not  merged.*  So  a  mortgagee,  for  indemnity, 
purchased  the  equity  of  redemption  at  a  sheriff's  sale,  and 
paid  the  debt  for  which  he  was  surety.     Having  refused,  on 

1  Parker  v.  Parker,  4  Pick.  505.  3  pitch  v.  Cotheal,  2  Sandf.  Cli.  29. 

2  Tichout  V.  Harmon,  2  Aik.  37.  *  Crafts  v.  Crafts,  13  Gray,  360. 


CH.  XVIir.]  ASSIGNMENT.  547 

request,  to  acknowledge  satisfaction,  the  mortgagor  insti- 
tuted a  suit  for  the  penalty  provided  by  statute,  if  a  mort- 
gagee, having  received  satisfaction  of  the  mortgage,  refuses, 
on  request  of  the  mortgagor,  to  acknowledge  satisfaction 
thereof  on  the  record.  Held,  he  was  not  entitled  to  recover.^ 
So  A.  gave  to  B.  a  bond  and  mortgage,  and  afterwards  a 
mortgage  of  the  same  land  to  C. ;  and  D.,  a  relative  of  A., 
paid  or  handed  to  B.  two  several  sums,  at  different  times, 
taking  loose  receipts  therefor,  on  account  of  the  bond,  and 
afterwards  a  further  sum  for  the  balance  due,  whereupon  the 
three  snms  were  credited  on  the  bond.  Held,  the  bond  and 
mortgage  in  the  hands  of  D.  should  have  priority  over  the 
mortgage  to  C." 

17.  And  the  same  point,  of  the  rights  of  a  surety  in  case  of 
mortgage,  is  illustrated  by  the  following  case.  Land  mort- 
gaged to  secure  a  bond  was  conveyed  by  the  mortgagor,  the 
purchaser  agreeing  to  pay  the  debt  and  interest.  Upon  his 
failure  to  pay  the  interest,  the  mortgagor  paid  it,  and  it  was 
indorsed  upon  the  bond.  The  mortgagor  then  purchased  the 
securities,  and  took  an  assignment  of  them  in  the  name  of  a 
trustee.  Held,  upon  a  sale  of  the  land  by  a  sheriff,  he  was 
entitled,  as  against  a  subsequent  judgment  creditor  of  the 
purchaser,  to  receive  from  the  proceeds  the  principal  as  well 
as  interest  of  the  mortgage  debt.^  The  Court  say  :  ^  —  "  Con- 
trary to  what  would  seem  to  be  the  English  doctrine  on  the 
subject,  it  is  now  definitely  settled  in  Pennsylvania,  that, 
though  actual  payment  discharges  a  judgment  or  other  in- 
cumbrance at  law,  it  does  not  in  equity,  where  justice  requires 
it  should  be  kept  afoot  for  the  safety  of  the  paying  surety. 
And  this  is  always  the  case  where  the  amount  of  the  debt  is 
advanced  to  procure  the  control  of  the  security,  and  not  with 
the  intent  to  extinguish  it."  In  regard  to  a  supposed  dis- 
tinction in  this  respect  between  the  principal  and  interest  of 
the  debt,  the  Court  further  remark :  —  "  It  is  ordinarily  diffi- 

1  Phelps  V.  Relfe,  20  Mis.  479.  =*  Morris  v.  Oakford,  9  Barr,  498. 

2  Lanabert  v.  Hall,  3  Halst.  Ch.  410,        *  Ibid.  500,  501. 
651. 


548  THE  LAW  OF  MORTGAGES.         [CH.  XVIII. 

cult  to  conceive  a  mere  surety's  intention  to  be  extinguish- 
ment  and  not  advancement.  Prima  facie^  the  latter  is  to  be 
taken  as  the  object.  Here,  everything  negatives  the  idea 
(that)  the  mortgagors  intended  to  discharge  the  yearly  inter- 
est in  case  of  Barrington,  who  had  expressly  agreed  to  pay 
it.  Nor  does  this  conclusion  work  injustice  to  Morris,  the 
subsequent  judgment  creditor.  He  took  his  judgment,  of 
course,  subject  to  the  prior  mortgage,  as  it  was  exhibited  by 
the  record,  and  the  interest  growing  due  under  it.  He  must 
be  taken  to  have  had  notice  of  the  debtor's  express  undertak- 
ing to  discharge  the  mortgage  debt  and  its  interest.  He  was 
bound  to  know  that  payment  of  the  latter  by  the  mortgagors 
did  not  discharge  the  land  of  its  lien.  His  delay  to  enforce 
his  judgment  was  consequently  at  his  own  risk,  in  the  absence 
of  imputed  fraud  or  deceit  practised  by  the  mortgagors,  to 
whom,  at  all  times,  he  might  have  had  recourse  for  informa- 
tion." 

18.  Where  a  part  of  land  mortgaged  is  conveyed,  the  pur- 
chaser agreeing  in  the  deed  to  pay  the  mortgage,  and  he 
resells,  and  the  second  purchaser  buys  the  mortgage  ;  this  is 
a  discharge  of  the  mortgage.^ 

19.  But,  on  the  other  hand,  a  mortgagor  conveyed  one 
half  the  land,  by  metes  and  bounds,  to  A.,  the  other  to  B., 
paid  the  mortgage  in  part,  and  died.  A.  pays  the  balance, 
taking  an  assignment  of  the  mortgage.  The  heir  of  B. 
brings  ejectment  against  A.  for  the  B.  half.  Held,  there 
was  no  merger  as  to  this  half,  but  the  defendant  had  the 
rights  of  an  assignee.^  So  where  a  mortgagor  transfers  a 
part  of  the  land,  and  the  mortgage  is  assigned  to  the  pur- 
chaser, the  mortgage  is  not  thereby  merged  as  to  the  remain- 
ing part.'^  So  where  a  mortgagor  conveyed  part  of  the  land, 
and  the  grantee  afterwards  purchased  the  mortgage,  and  the 
residue  of  the  land  was  then  sold  on  execution  against  the 
mortgagor,  with  notice  to  the  purchaser  of  the  mortgage  and 

1  Russc4U-.  Piston,  3  Seld.  171.  See  ^  King  v.  M'Vickar,  3  Sandf.  Ch. 
Wynian  v.  Hooper,  2  Gray,  141.  192. 

-  Casey  v.  Buttolpb,  12" Barb.  637. 


CH.  xviil]  assignment.  649 

the  amount  due  upon  it;  held,  the  former  purchaser  could 
maintain  ejectment  against  the  latter,  and  hold  until  the 
mortgage  debt  was  paid.^ 

20.  Similar  questions  may  arise  from  the  conflicting  rights 
of  persons,  who  joined  in  purchasing  and  mortgaging  the 
land,  but  whose  interests  have  become  diverse  in  consequence 
of  subsequent  dealings  relating  to  the  mortgage,  to  which  all 
of  them  were  not  parties.  In  such  case,  the  general  rule  of 
intention  is  held  to  determine  the  legal  effect  of  an  otherwise 
doubtful  transaction.  Thus,  where  two  purchasers  of  land 
jointly  mortgage  it  for  the  price,  and  one  of  them  pays  the 
mortgage  by  instalments,  and  upon  the  last  payment  takes 
an  assignment  of  it ;  this  does  not  operate  as  a  merger  or 
extinguishment,  so  as  to  give  priority  to  a  subsequent  judg- 
ment creditor  of  the  other  purchaser.^  Coulter,  J.,  says:^  — 
"  Here  the  intent  of  the  mortgagor  and  mortgagee  was  quite 
apparent,  that  the  security  or  incumbrance  should  be  kept  on 
foot,  because  the  mortgagee  assigned  it  to  the  recovering 
mortgagor.  It  is  also  clearly  the  interest  of  the  mortgagor, 
that  it  should  not  sink  in  the  inheritance.  If  it  should  be  so 
held,  an  incumbrancer  would  get  part  of  the  proceeds  of  the 
sale  in  this  case  against  equity,  because,  at  the  time  he  pro- 
cured his. incumbrance,  the  mortgage  was  indisputably  the 
oldest  lien,  and  it  continued  so  up  till  the  payment  of  the 
money  by  Hart.  Why,  then,  should  the  judgment  against 
Duncan,  the  other  mortgagor,  who  had  really  no  equity  in 
the  land,  all  the  money  having  been  paid  by  Hart,  be  held 
extinguished  by  Hart's  payment  of  the  money  contrary  to 
the  expressed  intent  of  the  parties,  merely  to  take  that  much 
out  of  his  pocket  in  favor  of  one  whose  whole  lien  was  sub- 
ject to  the  lien  of  the  mortgage  ?  If  he  or  anybody  else  had 
bid  off"  the  land,  to  an  amount  exceeding  the  mortgage,  then 
he  would  have  got  his  money." 

21.  Another  turning  point  in  cases  of  this  nature  is  ex- 
pressed as  follows:  —  "It  may  be,  that  a  person  who  has 

1  Fluck  V.  Eeplogle,  13  Penn.  405.  ^  jbid.  333. 

2  Duncan  v.  Urury,  9  Barr,  332. 


550  THE  LAW  OF  MORTGAGES.        [CH.  XVIII. 

become  a  creditor  or  has  parted  with  his  rights  upon  the  faith 
of  a  legal  presumption  of  the  merger  of  a  mortgage,  fairly 
raised  by  the  acts  of  the  party  in  whom  the  right  to  the 
mortgage  and  the  estate  in  fee  had  become  united,  all  of 
which  is  placed  upon  record,  shall  be  entitled  to  have  the 
mortgage  considered  merged  as  respects  him  ;  yet  here  the 
persons  claiming  to  have  the  benefit  of  a  merger  parted  with 
nothing  upon  the  faith  of  any  such  presumption.  They  had 
been  creditors,  and  obtained  their  liens  before  ;  their  con- 
dition was  not  made  worse  by  keeping  the  mortgage  alive." ^ 

22.  The  following  miscellaneous  cases,  with  great  variety 
in  their  particular  facts,  illustrate  the  general  rules  above  laid 
down. 

22  a.  Writ  of  entry.  The  demandant  claimed  under  a 
mortgage  from  Blanchard  to  the  Hingham  Institution  for 
Savings,  dated  September  23,  1837,  to  secure  a  note  for 
$2,000,  and  assigned  by  the  mortgagee  to  the  plaintiff, 
August  27,  1841.  Blanchard,  on  the  6th  of  May,  1839, 
leased  a  part  of  the  premises  to  the  defendants  for  five  years, 
they  agreeing  to  pay  him  so  much  per  annum  as  rent,  to 
lend  him  $500  on  his  note,  and  to  take  payment  of  the  note 
by  annually  indorsing  the  rent  thereon.  June  12,  1839, 
Blanchard,  for  the  consideration  of  $2,000,  conveyed  the 
premises  to  the  demandant  "  subject  to  a  mortgage  of  $2,000 
to  the  Hingham,  &c.,  and  the  store  occupied  by  (the  defend- 
ants) being  under  lease  to  them  of  five  years,  and  $500  hav- 
ing been  already  paid  to  said  Blanchard  on  the  lease ; "  the 
demandants  giving  back  a  bond  to  reconvey  upon  payment 
of  $2,000  in  three  years,  with  interest  annually.  Neither 
party  understood  this  transaction  as  a  mortgage,  but  as  a 
sale  for  the  full  value  of  the  premises.  Previously  to  the 
assignment  of  the  mortgage  to  the  demandant,  one  of  the 
defendants  offered  the  mortgagees  to  pay  and  take  an  as- 
signment of  the  mortgage,  but  the  latter  refused  the  offer. 
Held,  the  action  was  maintainable.  The  Court  remark:  — 
"  The  question  is,  whether,  upon  the  facts  reported,  the  mort- 

1  Moore  v.  Tlie  Harrisburg  Bank,  8  Watts,  150. 


CH.  XVIII.]  ASSIGNMENT.  551 

gage  was  extinguished  by  the  said  assignment.  And  we  are 
all  of  opinion  that  it  was  not.  When  the  demandant  took 
the  assignment,  he  held  the  same  premises  by  virtue  of  a 
subsequent  mortgage  to  him  from  the  said  Blanchard ;  and 
he  had  the  right  to  pay  off  the  previous  mortgage  and  to 
extinguish  the  same,  or  to  take  an  assignment  of  it,  and  to 
keep  up  the  incumbrance  for  his  own  benefit,  and  to  protect 
himself  against  intervening  incumbrances.  The  general 
rule  is,  that  where  the  legal  title  by  the  mortgage  becomes 
united  with  the  equitable  title,  —  the  mortgage  is  merged 
and  extinguished.  But  if  the  owner  of  the  legal  and  equi- 
table titles  has  an  interest  in  keeping  those  titles  distinct,  he 
has  a  right  so  to  keep  them,  and  the  mortgage  will  not  be 
extinguished.  This  action  may  be  well  maintained,  the 
demandant  having  the  legal  title.  But  the  tenants  have  a 
right  by  virtue  of  their  lease  to  redeem  the  prior  mortgage, 
and  they  will  be  entitled  to  have  a  conditional  judgment 
entered."  ^ 

23.  An  execution  being  extended  upon  land  of  the  debtor, 
subject  to  two  mortgages,  the  mortgagees  made  an  agree- 
ment with  the  mortgagor,  to  which  the  creditor  was  privy, 
that  the  land  should  be  sold,  and  the  proceeds  applied  first 
to  their  mortgages,  then  to  the  execution.  The  land  was 
accordingly  sold,  and  the  purchaser  paid  the  mortgages,  and 
the  balance  of  the  proceeds  to  the  execution  creditor.  The 
first  mortgagee  acknowledged  satisfaction  upon  the  record, 
and  the  second  released  all  his  right  to  the  mortgagor.  On 
the  same  day,  the  mortgagor  conveyed  with  warranty  to  the 
purchaser.  Held,  without  regard  to  the  execution  creditor's 
knowledge  of  the  transaction,  the  effect  of  it  was,  to  make 
the  purchaser  substantially  an  assignee  of  the  mortgages,  the 
mortgagor  being  a  mere  instrument  for  effecting  the  assign- 
ment ;  and  that  the  execution  creditor  could  not  hold  the 
land  without  paying  the  mortgages  to  the  purchaser." 

24.  In  Tuttle  v.  Brown,^  it  was  held,  that  the  purchaser  of 

1  Loud  V.  Lane,  8  Met.  517.  ^  14  Pick.  514. 

2  Marsh  v.  Rice,  1  N.  H.  167. 


552  TUE   LAW   OF   MORTGAGES.  [CH.    XVIII. 

at)  equity  of  redemption  sold  on  execution,  who  afterwards 
takes  an  assignment  of  the  mortgage,  may  recover  posses- 
sion of  the  land,  by  a  suit  commenced  before  the  expiration 
of  the  mortgagor's  right  to  redeem  the  equity,  without  an 
entry  by  himself  or  the  mortgagee.  There  is  no  merger  of 
the  mortgage. 

25.  If  the  assignee  of  a  mortgage  prosecutes  the  foreclosure 
suit  to  judgment  and  execution,  and  sells  thereupon  a  part  of 
the  land  of  which  he  holds  the  equity  ;  there  is  no  merger.^ 

26.  A  mortgagee,  before  foreclosure,  agreed  to  receive  the 
sum  due  at  a  certain  day,  after  foreclosure,  which  he  received 
accordingly,  and  by  the  mortgagor's  direction  transferred  his 
title  to  a  third  person,  who  had  advanced  most  of  the  money. 
Held,  this  was  not  a  payment  and  discharge  of  the  mortgage, 
but  a  conveyance  of  the  land,  and  that  although  the  assignee 
gave  to  the  mortgagor,  soon  after  the  transfer,  a  written 
promise  to  convey  to  him  on  payment  of  his  advance  with 
interest,  he  did  not  thereby  become  a  mortgagee,  whose  title 
would  not  be  liable  to  an  execution.  It  seems,  as  against 
him,  the  mortgagor  might  specifically  enforce  the  contract,  if 
no  rights  of  third  persons  had  intervened,  and  that  such  con- 
tract might  in  equity  constitute  a  mortgage  or  trust.^  Wood- 
bury, J.,  remarks  as  follows:^  —  "  It  would  be  unjust  to  treat 
the  transaction  as  a  payment  and  a  mere  discharge  of  the 
mortgage.  Because  that  would  strip  Webster,  who  advanced 
most  of  the  money,  of  all  security  for  it ;  and  it  would  do 
this  also  against  the  clear  intent  of  Spring,  the  mortgagor, 
who  not  only  procured  a  conveyance  of  the  premises  to  be 
made  to  Webster  by  the  bank,  which  is  inconsistent  with  an 
intent  merely  to  discharge  the  mortgage,  but  took  back  a 
writing  from  Webster,  stipulating  to  permit  Spring  to  pay 
him  the  sum  advanced  at  any  time  within  three  years ;  and 
then  to  receive  back  a  conveyance  of  the  premises.  All  this 
shows  explicitly  Spring's  intention  not  to  have  the  money 
paid  to  the  bank  applied  simply  to  discharge  the  mortgage, 

'  Knowles  v.  Lawton,  18  Geo.  476. 

•^  Sliapley  v.  liaugeley,  1  W.  &  M.  213.  ^  Ibid.  218,  219. 


CH.  XVIir.J  ASSIGNMENT.  553 

but  rather  to  have  the  bank's  title  under  it  conveyed  to  some 
third  person.  The  parties  must  in  equity  be  regarded  as 
intending  to  have  an  absolute  estate  exist  in  the  bank,  but 
under  a  stipulation  that  it  should  be  conveyed  to  Sprin^^  or 
his  appointee,  at  the  time  the  check  became  payable,  if  the 
money  was  then  paid  ;  that  such  an  estate  was  conveyed  to 
Webster  by  the  bank,  he  being  properly  selected  by  Spring 
to  receive  the  conveyance  on  account  of  his  having  advanced 
most  of  the  money,  and  that  Webster  thenceforward  held  an 
absolute  estate,  and  not  an  assignment  merely  of  a  mort- 
gage. It  was  not  an  assignment  of  the  mortgage  merely, 
for  other- reasons,  because  it  had  become  foreclosed,  and 
must  be  so  considered  in  order  to  enforce  the  views  of  the 
parties  and  the  equities  of  the  case.  Nor  does  it  purport 
to  be  a  mere  assignment,  as  the  note  and  mortgage  deed 
were  given  up  to  Spring  rather  than  transferred  to  Webster, 
he  getting  a  conveyance  of  the  premises  only.  Webster's 
writing  to  Spring  was  not  sealed,  nor  given  the  same  day 
with  the  deed ;  nor  was  it  an  agreement  between  the  par- 
ties to  the  deed.  And  this  would  prevent  it  from  being 
what  it  otherwise  might  be,  a  defeasance,  and  the  deed 
coupled  with  it  a  mortgage  on  its  face.  But  for  the  circum- 
stance of  the  writing  not  being  between  the  grantor  and 
grantee  in  the  deed,  it  might  be  held  in  chancery,  if  Webster 
could  sue  Spring  for  the  money,  that  such  writing  converted 
the  deed  into  a  mortgage.  Possibly  Spring,  if  he  chose, 
might  in  chancery  have  the  land  charged  with  a  trust  or 
mortgage,  before  any  third  person  had  bought  or  levied  on 
the  premises  without  notice  of  Spring's  claims.  But  as  to 
such  third  persons,  the  title  of  Webster  must  be  deemed  an 
absolute  one." 

27.  After  the  bringing  of  a  writ  of  entry  by  a  mortgagor, 
the  assignment  by  a  mortgagee,  to  the  tenant  in  such  action, 
of  a  mortgage  on  the  land,  the  condition  of  which  has  been 
performed,  will  not  defeat  the  action.^ 

1  Chadbourne  v.  Eackliff,  30  Maine,  354. 
VOL.  I.  47 


554  THE    LAW    OF   MORTGAGES.  [CH.  XVIII. 

28.  In  the  case  of  Peltz  i;.  Clarke,^  certain  land  which  had 
been  mortgaged  was  sold,  after  the  mortgagor's  death,  by 
trustees,  to  pay  his  debts.  No  deed  was  given  to  the  pur- 
chaser, but  he  had  paid  most  of  the  purchase-money.  The 
mortgagee  brought  ejectment  upon  the  mortgage  against  the 
trustees  and  the  heirs  of  the  mortgagor,  and  obtained  a  decree 
for  foreclosure  and  sale.  The  purchaser,  with  the  consent  and 
in  presence  of  one  of  the  trustees,  paid  the  whole  amount  due 
upon  the  mortgage,  it  being  considered  a  part  of  the  purchase- 
money  due  under  the  trustees'  sale.  The  mortgagee  gave 
the  purchaser  a  receipt,  and  an  order  to  enter  the  suit  "  set- 
tled,"' which  was  done.  The  heirs  of  the  mortgagor  then 
bring  an  action  of  ejectment  against  the  purchaser.  Held, 
although  a  stranger  could  not  set  up  a  mortgage,  satisfied  by 
the  mortgagor,  to  defeat  his  title,  he  might  thus  use  a  mort- 
gage bought  in  by  himself;  that,  as  the  purchaser  owned  the 
equitable  estate,  and  had  paid  off  the  mortgage  on  his  own 
account,  the  incumbrance  belonged  to  him,  and  the  mortga- 
gor could  not  have  demanded  a  reconveyance  from  the  mort- 
gagee ;  and  that  this  action  could  not  be  maintained. 

29.  Mortgage,  to  secure  certain  sums  of  money,  and  also 
the  payment  by  the  mortgagor  to  a  bank  of  a  certain  sura 
due  from  the  mortgagee,  and  for  which  the  mortgagee  had 
mortgaged  the  same  land  to  the  bank,  with  a  power  of  sale. 
Afterwards  the  mortgagor  became  a  bankrupt ;  the  prem- 
ises were  sold  under  the  power,  and  the  mortgagor  became 
the  purchaser.  He  subsequently  received  a  discharge  in 
bankruptcy.  Held,  the  mortgagor  did  not  acquire  an  abso- 
lute title,  but  took,  subject  to  his  own  mortgage,  so  far  as 
the  debts  thereby  secured  remained  unpaid,  although  that 
mortgage  contained  no  warranty  of  title.'^ 

30.  Writ  of  entry,  founded  upon  a  mortgage  from  Fry  to 
Gould,  an  assignment  thereof  to  Willard,  and  a  supposed 
assignment  to  the  father  of  the  demandant,  since  deceased, 
in  whom,  it  was  contended,  an  absolute  title  vested  by  fore- 
closure.   The  action  was  brought  against  a  second  mortgagee. 

1  5  Pet.  481.  2  Stewart  v.  Anderson,  10  Alab.  504. 


CH.  xviil]  assignment.  555 

It  appeared  that  the  demandant,  after  purchasing  the  right 
of  redeeming  both  the  mortgages,  which  purchase  jjrovcd  to 
be  void  in  law,  paid  to  Willard  the  amount  of  his  niorlgage, 
taking  from  him  a  deed,  in  which  he  "  remises,  releases, 
grants,  bargains,  and  sells,"  his  interest  in  the  land,  referring 
to  the  mortgage,  "  meaning  hereby  to  release  all  the  right  I 
have  in  the  premises  by  virtue  of  said  mortgage,  the  aforesaid 
sum  having  been  this  day  paid  me  in  discharge  of  said  mort- 
gage." Held,  the  action  could  not  be  maintained,  the  deed 
in  question  having  operated,  not  as  an  assignment  of  Wil- 
lard's  claim,  with  the  land  as  secuiity,  which  claim  was  paid 
by  the  demandant,  but  as  a  grant  of  the  legal  estate,  or  a 
satisfied  mortgage.^ 

31.  Where  a  second  mortgagee,  holding  also  a  mortgage 
from  a  surety  for  the  same  debt,  purchases  the  premises  of 
the  mortgagor,  subject  to  the  first  mortgage,  for  a  price  ex- 
ceeding both  mortgage  debts  ;  his  own  debt  is  merged  and 
extinguished,  and  the  surety  no  longer  liable.^ 

32.  Where  an  assignment  would  be  more  beneficial  to  a 
junior  mortgagee  than  a  satisfaction  of  the  prior  mortgage, 
he  may,  by  a  bill  in  equity,  have  a  decree  for  redemption  and 
to  compel  such  assignment,  after  tendering  the  debt  and  de- 
manding an  assignment.^ 

33.  A  mortgage  may,  under  some  circumstances,  be  dis- 
charged in  reference  to  the  mortgagee,  but  revived  in  the 
hands  of  an  assignee.  Thus,  there  being  several  mortgages 
upon  land,  and  the  owner  of  a  former  mortgage  becoming 
indebted  to  the  owner  of  the  equity  of  redemption,  the  mort- 
gage debt  was  allowed  in  part  satisfaction  of  such  debt.  The 
mortgage  was  not  cancelled,  but  was  assigned  to  A.,  for  the 
benefit  of  the  owner  of  the  equity,  who  afterwards  borrowed 
money  of  B.,  and  caused  the  bond  and  mortgage  to  be  as- 
signed by  A.  to  B.,  as  security.  Held,  the  mortgage  was 
discharged  in  the  hands  of  A,  who  took  no  better  right  than 

1  Wade  V.  Howard,  11  Pick.  289.  =»  Pardee   v.    Van    Aiikeii,    3    Barl.. 

2  Loomer  v.  Wheelwright,  3  Sandf.     534. 
Ch.  185. 


556  THE   LAW    OF   MORTGAGES.  [CH.  XVIIL 

his   assignor ;   but  that  the  assignment  revived  it,  subject, 
however,  to  subsequent  incumbrances.^ 

34.  Parol  evidence,  that  an  assignment  of  a  mortgage  was 
intended  to  be  a  discharge,  is  inadmissible,  even  on  the  part 
of  a  third  person,  except  for  the  purpose  of  proving  fraud  ; 
such  as  a  fraudulent  variance  from  the  agreement  of  the  par- 
ties, in  order  to  accomplish  some  covert  purpose.^ 

35.  The  question  has  sometimes  arisen,  -whether  a  mort- 
gage of  indemnity^  that  is,  a  mortgage  made  to  secure  the 
mortgagee  on  account  of  his  liabilities  as  surety  for  the  mort- 
gagor, is  extinguished  by  subsequent  transactions,  which  re- 
lieve the  mortgagee  from  any  direct  indebtedness,  without 
subjecting  him  to  any  loss,  while  at  the  same  time  they  sub- 
stitute some  third  party  in  his  place  under  the  mortgage. 
One  Buck,  in  1839,  made  a  mortgage  to  Shaw,  conditioned 
as  follows:  —  "Whereas  said  Shaw,  on  the  13th  of  Sep- 
tember last,  signed  a  note,  with  said  Buck  as  surety,  for 
^4,000,  payable  to  Daniel  Smith  or  order  in  four  years  from 
date,  with  annual  interest;  now,  if  said  Buck  shall  save  said 
Shaw  from  any  trouble,  cost,  or  expense,  by  reason  of  sign- 
ing said  note,  this  deed  is  to  be  void."  In  1841,  the  equity 
of  redemption  was  attached,  and  in  April,  1843,  sold  on  ex- 
ecution, and  conveyed  to  Hale  and  Eames.  In  September, 
1843,  the  mortgagee  assigned  the  mortgage  to  the  defendant, 
as  follows:  —  "  In  consideration  of  (the  defendant)  agreeing 
to  release  me  from  all  liability,  other  than  the  use  of  my 
name,  in  the  collection  of  the  same,  of  a  joint  and  several 
note,  signed  by  Bushrod  Buck  and  myself  for  $4,000,  dated 
October  7,  1839,  I  hereby  assign,  transfer,  and  set  over  to 
(the  defendant)  all  my  right,  interest,  and  claim  to  the  within 
mortgaged  premises."  The  defendant  thereupon  took  peace- 
able possession,  and  held  it  for  the  purpose  of  foreclosure. 
The  plaintiff  brings  a  bill  in  equity  to  redeem  against  the 
defendant,  claiming  that  nothing  was  due  on  the  mortgage, 
because,  by  the  assignment,  Shaw  was  released  from  hia 

1  Bolles  V.  Wade,  3  Green,  Ch.  458.        2  Howard  v.  Howard,  3  Met.  548; 

Tyler  v.  Taylor,  8  Barb.  585. 


CH.  XVIII.]  ASSIGNMENT.  557 

liability  as  surety  for  the  mortgagor,  and  the  mortgage  dis- 
charged. Held,  this  was  not  the  effect  of  such  assigniiient, 
and  that  the  defendant  should  hold  the  land  as  against  the 
plaintiff,  until  the  latter  should  pay  the  mortgagor's  note  to 
the  defendant.^  The  Court  (substantially)  remark  :  ^  —  '<  The 
real  purpose  of  the  assignment  is  quite  obvious  ;  and  the 
instrument  ought  to  be  so  construed  as  to  secure  that  object, 
if  it  may  be  consistently  with  the  rules  of  law.  The  equity 
of  the  case  is  obviously  with  the  defendant,  upon  the  question 
whether  his  note  shall  constitute  a  lien  upon  the  premises, 
before  the  defendant  can  be  required  to  release  the  mortgage. 
The  object  seems  to  have  been,  that  the  defendant  should 
receive  from  Shaw  a  transfer  of  the  mortgage,  and  thereafter 
rely  solely  upon  that,  and  make  no  claim  on  Shaw  personally. 
The  defendant  at  once  entered  into  peaceable  possession  for 
foreclosure.  It  is  contended  that  the  mortgage  is  discharged, 
because  (according  to  the  terms  of  the  condition)  Shav/  has 
been  saved  from  all  trouble,  &c.,  and  that  by  force  and  effect 
of  the  arrangement  made  by  the  defendant  with  Shaw,  he 
could  be  no  further  damnified.  In  the  assignment  it  is  recited, 
that  in  consideration  of  the  defendant's  agreeing  to  release 
him  from  all  liability,  other  than  the  use  of  his  name  in  the 
collection  of  the  note,  he  assigns  to  the  defendant  all  his 
right,  &c.,  to  the  mortgaged  premises.  This  instrument  is 
not  signed  by  the  defendant,  though  accepted  by  him,  and  to 
some  purposes  assented  to  by  him.  But  we  do  not  think  it 
necessarily  is  to  have  the  same  effect  as  a  release,  under  his 
hand  and  seal,  to  Shaw,  might  have  had.  There  might  have 
been  a  technical  release  to  Shaw,  the  effect  of  which  perhaps 
could  not  be  avoided.  But  we  may  take  into  consideration 
the  entire  language  and  purpose  of  the  instrument.  It  was 
only  a  substitution  of  the  mortgage,  for  the  personal  liability 
of  Shaw,  and  intended  to  be  effected  through  the  name  of 
Shaw.  The  use  of  his  name  in  the  collection  of  the  note 
was  distinctly  stipulated  for  in  the  assignment.     It  contem- 

1  Hayden  v.  Smith,  12  Met.  511.  '  J^'J-  ^13. 

47  * 


558  THE    LAW    OF   MORTGAGES.  [CH.  XVIII. 

plated  the  use  of  it,  so  far  as  was  necessary  to  perfect  the 
lien.  The  note  has  not  been  paid.  It  may  be  enforced 
against  Shaw,  unless  discharged  by  the  recital  in  the  assign- 
ment. The  recital  was  only  a  qualified  discharge,  to  the 
extent  compatible  with  the  continuance  of  the  security  by 
mortwac^e.  All  parties  understood  the  mortgage  was  a  lien 
upon  the  property,  to  secure  the  note  to  the  defendant." 

35  a.  So,  pending  a  bill  to  foreclose,  the  solicitor  of  the 
complainants,  with  their  consent,  received  from  A.,  a  friend 
of  the  mortgagor,  part  of  the  debt,  agi-eeing  that  A.  should 
have  the  benefit  of  the  mortgage  to  that  amount.  Held, 
an  assignment  in  equity  7>ro  tanto,  as  against  a  subsequent 
mortgagee,  who  could  not  treat  it  as  a  payment.^ 

36.  But,  on  the  other  hand,  after  assignment  of  a  mort- 
gage, the  mortgagor  conveyed  the  estate,  and  the  purchaser 
subjected  it  to  lien  by  way  of  mortgage,  and  then  gave  notes 
with  an  indorser  to  the  assignee  for  the  interest  due  on  the 
original  mortgage,  which  were  paid  by  the  indorser.  The 
land  having  been  sold,  held,  the  indorser  could  not  claim 
title  as  an  assignee  of  the  first  mortgage,  by  subrogation.^ 
So  A.  appointed  an  agent  to  obtain  a  loan,  authorizing  him 
to  execute  a  mortgage.  B.  indorsed  a  note  for  the  agent, 
which  C,  by  a  subsequent  arrangement  with  A.,  undertook 
to  pay.  B.,  afterwards  learning  that  C.  would  not  pay,  took 
the  mortgage,  but,  before  its  execution,  C.  had  paid  the  note, 
and  B.  assigned  the  mortgage  to  C.  Held,  C.  could  not 
enforce  it.^  (i) 

1  McMillan  v.  Gordon,  4  Ala.  716.  ^  Ravenel    v.    Lyles,    Speers,    Ch. 

2  Neptune,  &c.,  v.  Dorsev,  3  Md.  Ch.     281. 
334. 


(i)  In  Viles  v.  Morlton,  11  Venn.  4  70,  the  defendant  was  co-surety  with 
Edson  and  Story  to  the  plaintiffs  for  William  Ford,  who  gave  Edson  and 
Story  a  sufficient  mortgage  of  indemnity.  Ford  subsequently  mortgaged 
the  same  property  to  Blake,  and  also  gave  a  mortgage  of  other  property,  to 
be  discharged  on  Ford's  paying  the  plaintiffs'  debt.  Blake  purchased  the 
equity  of  redemption  of  the  mortgaged  premises,  and  then  paid  the  plaintiffs' 


CH.  XVIII.]  ASSIGNMENT.  559 

37.  The  assignment  of  a  mortgage  may  itself  be  construed 
as  a  mortgage,  subject  to  all  the  rights  and  privileges  inci- 
dent to  the  original,  conditional  conveyance,  {j)  Thus  the 
plaintiff,  being  indebted  to  the  defendants  upon  a  note  to 
the  amount  of  $2,000,  and  in  embarrassed  circumstances, 
upon  their  application  assigned  to  them  as  security  a  bond  « 
and  mortgage  for  |4,000  ;  it  being  expressly  agreed,  that  the 
surplus,  after  paying  the  note,  should  belong  to  him.  The 
terms  of  the  assignment  were,  that  he,  for  the  sum  of  $2,000, 
assigned  the  securities  to  the  defendants,  with  power  to  col- 
lect $2,000  for  their  own  use ;  adding  a  covenant  that  this 
sum  was  due  on  the  mortgage,  and  that  the  premises  should 
sell  for  so  much,  with  the  interest  and  costs.  In  1817,  the 
defendants  foreclosed,  and  caused  the  premises  to  be  bid  in 
for  $700.  Before  the  sale,  the  plaintiff  was  told  by  the  agent 
of  the  defendants,  that,  if  they  purchased,  the  property  should 
remain  as  it  was  to  him,  and  the  mortgagors  only  be  fore- 
closed. The  plaintiff  always  insisted  upon  his  right  to  re- 
deem, and  in  1825  directly  applied  to  do  so,  and  oflered  to 
pay  all  that  was  due  ;  but  the  defendants  would  not  allow 
him  to  redeem.  Held,  the  assignment  was  a  mortgage,  and 
would  have  been  such,  even  though  in  terms  absolute ;  that 
the  defendants  might  foreclose  under  the  statute  so  as  to  bar 
the  mortgagors;  that  the  assignment  was  a  mortgage  of  the 
power  of  sale  as  well  as  of  the  debt ;  that,  if  the  purchase  had 
been  made  by  a  third  person,  the  plaintiff  would  have  lost  his 
right  to  redeem  the  land,  but  might  still  redeem  in  reference 
to  the  surplus  of  the  purchase-money,  and,  the  defendants 
being  themselves  the  purchasers,  and  still  retaining  the  legal 


notes.  Held,  no  action  could  be  maintained  upon  the  notes  by  or  in  the 
name  of  the  plaintiffs,  they  being  paid  by  the  owner  of  the  equity  of  redemp- 
tion and  second  mortgagee.     See  Converse  v.  Cook,  8  Verm.  166. 

U)  In  Maine,  it  seems  a  conditional  assignment  of  a  mortgage  may  be 
treated  as  a  mortgage  of  real  estate,  subject  to  redemption  for  three  years. 
If  otherwise,  then  subject  to  redemption  in  reasonable  time.  Cutts  v.  lork, 
&c.,  6  Shepl.  191.     So  in  Michigan  ;  Graydon  v.  Church,  7  Mich.  36. 


560  THE   LAW   OF   MORTGAGES.  [CH.  XVIII. 

title,  he  had  not  lost  his  right  to  redeem  the  land  itself;  and, 
the  assignment  being  itself  a  mortgage,  and  the  plaintiff's 
right  of  redemption  not  divested  by  the  statute  of  foreclos- 
ure, that  the  question  of  waiver  by  lapse  of  time  did  not 
arise.^ 

►  38.  Where  a  bond  and  mortgage  are  assigned  as  security 
for  a  debt,  a  subsequent  assignee  takes  them,  subject  to  the 
ricrht  of  the  first  assignor  to  redeem,  by  paying  such  debt, 
with  interest.'-^ 

39.  Where  a  second  assignee  of  a  mortgage  paid  the  first 
assignee  the  debt,  to  secure  which  the  first  assignment  was 
made,  and  the  balance  of  the  mortgage  debt  to  the  mort- 
gagee, by  agreement  of  parties  ;  and  the  mortgagee  and 
second  assignee  had  notice  of  an  unregistered  deed  of  the 
land,  prior  to  the  mortgage  :  held,  the  first  grantee  was  en- 
titled to  redeem,  on  payment  of  what  the  second  assignee 
paid  to  the  first,  with  interest.^ 

40.  It  is  generally  considered,  that  the  introduction  of  a 
new  proviso  of  redemption  in  the  assignment  of  a  mortgage 
docs  not  constitute  a  new  mortgage.  But  where  the  mort- 
gagee assigned  a  part  of  the  mortgage  debt,  and  joined  with 
the  heir  of  the  mortgagor  in  mortgaging  a  part  of  the  lands 
anew,  with  a  new  proviso  and  rate  of  interest,  and  a  bond 
and  covenant ;  held,  in  a  late  case,  this  constituted  a  new 
mortgage.* 

41.  A  mortgagee,  who  has  pledged  the  mortgage  for  a 
sum  less  than  the  mortgage  debt,  may  file  a  bill  for  foreclos- 
ure in  his  own  name ;  especially  if  the  pledgee  refuses  to 
do  it.  The  latter  may  lawfully  file  such  bill,  and  in  such 
case  would  be  trustee  for  the  surplus  over  the  amount  of  his 
own  claim.^  (k) 

1  Slee  V.  Manhattan,  &c.,  1  Paige,        ^  Glidden  v.  Hunt,  24  Pick.  221. 
48.  *  Coote,  357 ;  Barham  v.  Earl,  &c., 

2  Sweet  V.  Van  Wyck,  3  Barb.  Ch.     3  M.  &  K.  106. 

647.  s  Norton  v.  Warren,  3  Edw.  106. 


(/:)  The  mortgagor,  by  assenting  to  a  subsequent  assignment  of  the  mort- 
gage, by  his  assignee,  to  secure  a  debt  of  the  latter  less  in  amount  than  the 


CH.  XVIir.]  ASSIGNMENT.  561 

42.  With  regard  to  the  form  of  an  assignment,  llie  assign- 
raent  of  a  bond  and  mortgage  may  be  valid,  especially  in 
equity,  though  the  assignee  be  not  called  by  name  ;  it  is  suffi- 
cient to  describe  him  in  a  particular  character  sustained  by 
him,  if  this  description  identifies  him  as  well  as  a  name.'  (/) 

1  Lady  Superior  v.  McNaraara,  3  Barb.  Cli.  375. 


mortgage  was  first  assigned  to  secure,  is  not  estopped  from  asserting  bis  right 
to  redeem. 

And  this,  notwithstanding  at  the  lime  of  such  assignment  lie  said,  that, 
if  the  debt  he  was  owing  was  paid  from  the  mortgage,  lie  would  be  satisfied. 

And  where  a  receiver  in  chancer}',  to  whom  such  mortgagor  of  a  niort"a"e 
had  assigned,  was  called  upon  by  a  subsequent  assignee  and  requested  to 
redeem  his  interest  in  the  moi'tgage,  and  was  told  that  unless  such  redemp- 
tion was  made,  the  assignee  was  about  to  transfer  the  mortgage  to  another, 
and  the  receiver  declined  to  redeem,  and  told  the  assignee  he  might  sell  to 
whom  he  pleased,  whereupon  the  assignee  did  sell,  but  to  one  who  was 
awa're  of  the  conditional  nature  of  the  assignment ;  held,  the  receiver  did 
not  thereby  forfeit  his  right  to  redeem,  or  estop  himself  frorti  asserting  such 
right. 

Where  a  mortgage  was  assigned  by  the  mortgagee  to  his  creditor  as  se- 
curity,  and  again  to  the  receiver  of  such  creditor,  and  a  subsequent  assignee 
of  the  mortgage,  the  last  of  several  sub-assignees  claiming  under  an  assign- 
ment made  prior  to  the  receiver's  appointment,  to  secure  a  sum  less  than 
that  for  which  the  first  assignee  held  his  assignment  as  security,  took  a  deed 
of  the  mortgaged  premises,  fiom  the  original  mortgagor  to  himself;  held,  this 
deed  had  the  effect  to  foreclose  the  mortgage  as  to  the  mortgagor  so  con- 
veying ;  that  the  land  now  represented  the  mortgage,  and  the  mortgagor  of 
the  mortgage,  or  the  receiver  claiming  under  him,  might  file  his  bill  in  chan- 
cery, and  have  a  decree  that  the  amount  of  the  mortgage,  less  the  sum  it  was 
assigned  to  secure,  be  paid  to  him,  and,  in  default  thereof,  the  premises  be 
sold,  to  satisfy  first  the  sum  the  mortgage  was  assigned  to  secure,  and  next 
to  pay  him  the  amount  of  the  mortgage  less  such  sum. 

Where  such  bill  was  filed,  and  it  appeared  that  possession  bad  been 
taken  under  such  deed,  and  the  complainant  had  been  remiss  in  asserting 
bis  rights,  and  might  thereby  have  induced  the  defendants  to  treat  the  prop- 
erty as  their  own,  discharged  of  the  lien  of  the  mortgage  ;  it  was  held,  that 
the  complainant  was  not  entitled  to  an  account  of  the  rents  and  profits  of 
premises  as  against  the  defendants.     Graydon  v.  Church,  7  Mich.  36. 

(/)  In  Shaw  V.  Loud,  12  Mass.  449,  a  bond  and  mortgage  were  given  to 
the  plaintiff's  by  the  description  of  the  heirs  at  law  of  John  Ti/rrd,  without 


562  THE   LAW    OF   MORTGAGES.  [CH.  XVIII. 

43.  The  assignment  of  a  mortgage,  like  the  mortgage  it- 
self, may  be  made  to  several  persons,  jointly.  And  where, 
in  such  case,  each  assignee  pays  a  certain  part  of  the  con- 
sideration, and  the  assignment  specifies  the  share  of  each  ;  a 
payment  of  such  share  to  one  is  held  to  extinguish  his  inter- 
est, so  that  he.  has  no  longer  any  power  to  re-assign.^ 

43  a.  Actual  delivery  is  held  not  indispensable  to  a  valid 
assignment.^  (m)  It  may  be  made  by  a  mere  indorsement.^ 
So  it  lias  been  held,  that,  where  one  person  takes  a  bond  and 
mortgage  for  the  benefit  of  another,  payable  to  the  former, 
under  a  previous  agreement  to  assign  them  to  the  latter,  no 
particular  formality  of  delivery  and  acceptance  is  necessary, 
but  placing  them  before  him  for  his  signature  to  the  assign- 
ment is  a  good  delivery,  and  the  execution  of  such  assign- 
ment a  good  acceptance.*  On  the  other  hand,  an  assignment 
of  a  mortgage  is  valid,  although  the  mortgage  notes  be  not 
indorsed  or  specified  in  the  assignment,  if  the  notes  are  de- 
livered to  the  assignee.^  But  mere  delivery  will  not  impair 
the  effect  of  a  written  assignment.  Thus  the  U.  S.  Co. 
mortgaged  their  mining  claim  to  R.,  in  order  that  he  might 
hold  it  in  trust  for  F.,  who  was  surety  on  R.'s  note  to  D., 
the  money  raised  on  which  was  used  by  the  U.  S.  Co.  R. 
assigned  to  F.,  who  took  the  mortgage,  but  immediately  re- 
turned it  to  R.  to  collect  the  interest  as  his  agent.     Held,  R. 

1  Furbush  V.   Goodwin,  Law  Rep.,  ^  Barnes  i\  Lee,  1  Bibb,  526. 

March,  1855,  p.  650.  *  Lady    Superior   v.   McNaniara,    3 

•^  Aidridge  v.   Weems,  2  Gill  &  J.  Barb.  Ch.  375. 

36.  6  Pratt  v.  Skolfield,  45  Maine,  386. 


mentioning  any  of  their  names,  he  being  dead  at  the   time.     Held,  the  se- 
curities were  valid. 

(jm)  In  Maine,  one  in  possession  of  notes,  and  the  mortgage  securing  them, 
cannot  maintain  an  action  upon  the  latter  "without  a  written  assignment  of 
it.  Lyford  v.  Ross,  33  Maine,  19  7.  Nor  does  the  sale  of  a  note  operate  as 
a  legal  transfer  of  the  mortgage  by  which  it  is  secured.  Warren  v.  Ham- 
stead,  33  Maine,  256.  (See  ch.  11.)  The  assignment  of  a  mortgage,  in  Penn- 
sylvania, carries  with  it  the  claim  against  the  mortgagor,  and  all  the  securities 
which  the  assignor  holds  against  the  mortgagor  or  other  parties  for  the  debt. 
Phillips  V.  Bank,  &c.,  18  Penn.  394. 


CH.  XVIII.]  ASSIGNMENT.  ,563 

had  no  interest  that  his  creditors  could  reach,  as  the  assign- 
ment was  complete  and  absolute,  and  the  re-delivery  to  him, 
not  apparently  fraudulent,  did  not  aflfect  F.'s  rights  ;  and  that 
F.'s  liability  on  the  note  was  a  good  consideration  for  the 
assignment.^ 

44.  The  acknowledgment  is  no  part  of  an  instrument  of 
assign  ment.2 

45.  An  assignee  is,  in  general,  subject  to  the  same  terms 
of  redemption  as  the  mortgagee.'^ 

46.  The  assignment  of  a  mortgage  so  far  divests  the  title 
of  the  mortgagee,  that  he  has  no  power  to  discharge  the 
mortgage  or  any  part  of  it.^  Thus,  in  case  of  a  mortgage  to 
secure  a  bond,  the  mortgagee  transferred  the  securities,  and 
afterwards  the  mortgagor  conveyed  the  land  to  him,  taking 
a  discharge  of  the  bond  and  mortgage.  Held,  the  discharge 
was  invalid  against  the  assignee.^  And  where  the  holder  of 
a  mortgage,  having  assigned  it,  afterwards  received  from  the 
mortgagor  his  promissory  note  for  interest  in  arrear ;  the  note 
was  held  void  for  want  of  consideration,  until  the  plaintiff 
affirmatively  showed  that  the  amount  of  the  note  had  been 
applied  on  the  mortgage  debt.  "  Indeed  the  taking  of  the 
note  after  having  parted  wdth  the  mortgage,  unless  the  mat- 
ter can  be  explained,  was  nothing  less  than  a  downright 
fraud  upon  the  defendant."  *^  (w) 

1  Hall  V.  Redding,  13  Cal.  214.  *  M'Cormick  v.  Digby,  8  Blackf.  99. 

■^  Livingston  v.  Jones,  Harring.  Ch.  ^  Brown  >j.  Blydenburgli,  3  Seld.  111. 

165.  ^  Gillett  V.  Campbell,  1  Denio,  520, 

^  Henderson  v.  Stewart,  4  Hawks,  522. 
256. 


(n)  On  the  other  hand,  an  assignee  may  receive  money  in  virtue  of  his 
mortgage,  for  which  he  will  be  liable  to  account  to  the  mortgagor.  Tlui.s,  the 
owner  of  property  insured  at  a  mutual  office  mortgaged  it,  and,  with  the 
assent  of  the  company,  made  to  the  mortgagee  an  assignment  of  the  policy, 
in  terms  absolute,  and  expressed  to  be  for  valuable  consideration,  but  intended 
only  as  security  for  the  mortgage  debt.  The  mortgagee,  alterwards,  for 
valuable  consideration,  assigned  the  debt,  mortgage,  and  policy,  with  the 
assent  of  the  company  to  the  latter  assignment;  and  the  debt  was  subse- 
quently paid  to  the  assignee  by  an  assignee  of  the  mortgagor,  who  purchased 


564  THE   LAW   OF   MORTGAGES.  [CH.  XVIII. 

47.  Although  the  assignment  of  a  mortgage  divests  the 
mortgagee  of  his  title  to  the  land,  it  does  not  pass  rent  due 
at  the  time  of  assignment,  without  express  words  to  that 
effect.  Lord  Chancellor  Truro  says  :  —  "  The  question  is, 
what  passes,  generally  speaking,  by  the  assignment  or  con- 
veyance of  a  mortgage  ?  Does  it  pass  all  the  future  rents 
that  are  to  become  due  only,  or  does  it  pass  all  the  rents  at 
that  time  in  arrear,  to  the  mortgagee?  One  would  think 
that  was  a  very  ordinary  principle.  Men  are  in  the  habit  of 
conveying  estates  day  by  day,  conveying  the  fee.  Well, 
what  passes  by  that  ?  Do  the  by-gone  rents  in  arrear  pass 
by  such  a  conveyance  ?  If  they  do  not,  what  is  the  rule  of 
law  that  makes  a  difference,  that  the  conveyance  of  the  mort- 
gage shall  transfer  by-gone  rents,  when  the  conveyance  of 
the  whole  estate  would  not  do  that,  but  leave  them  perfectly 
unaffected  ?  "  ^ 

48.  The  assignment  of  a  mortgage  operating  to  divest  the 

1  Salmon  v.  Dean,  5  Eng.  Rep.  107,  111 ;  15  Jur.  Gil. 


with  an  agreement  to  pay  the  mortgage  ;  and  the  mortgage  discharged.  The 
assignee  of  the  mortgage,  after  the  expiration  of  the  policy,  received  the 
return  premium,  and  the  mortgagor  brings  assumpsit  against  him  to  recover 
it.  Held,  though  the  defendant  might  receive  such  premium  as  attorney  for 
the  plaintiflf,  he  was  bound  to  pay  it  over  to  him.  Felton  v.  Brooks,  4  Cush. 
203.  Shaw,  C.  J.,  says  (Ibid.  206):  "Brooks  received  the  whole  of  his 
mortgage  debt  of  Rice,  from  a  fund  provided  by  the  plaintiff,  and  the  rights 
of  the  plaintiff  are  the  same  as  if  he  had  paid  the  whole  of  the  mortgage 
debt  of  the  plaintiff  in  money.  The  conclusion  seems  inevitable,  that  the 
money  received  by  Brooks  on  the  policy  as  a  return  of  the  premium  was 
received  by  him  to  the  use  of  the  plaintiff;  and  not  having  applied  it,  or 
had  occasion  to  apply  it  to  the  payment  of  the  plaintiff's  debt,  he  is  bound 
in  good  conscience  to  pay  it  to  the  plaintiff.  The  sum  received  by  Brooks 
was  received  after  he  had  been  paid  his  mortgage  debt  in  full  ;  it  is  clear, 
therefore,  that  he  received  it  on  a  security  which  ought  to  have  been  sur- 
rendered to  the  plaintiff,  and,  of  course,  to  his  use.  But  if  he  had  received 
it  before,  his  failure  to  apply  it  towards  the  mortgage  debt,  and  receiving  the 
whole  from  Rice,  who,  as  between  him  and  the  [)laintiff,  was  bound  to  pay 
the  whole  as  part  of  his  purchase-money,  is  ample  proof  that  Brooks  held 
the  return  premium  to  the  plaintiff's  use." 


nn.  xviil]  assignment.  5*35 

mortgagee's  title,  a  bill  to  foreclose  cannot  be  bronghl  in  his 
name,  for  the  use  of  the  assignee.^  (o)  It  is  said,  —  "  This 
proceeding  is,  in  the  main,  a  chancery  proceeding,  and  must 
be  conducted  according  to  the  rules  of  .equity  pleading.  It 
is  incompetent  and  unavailing,  therefore,  to  sue,  for  the  ])ur- 
pose  of  foreclosing  a  mortgagor's  equity  of  redemption,  in  the 
name  of  the  mortgagees,  for  the  use  of  another  person.  A 
court  of  chancery  could  take  no  cognizance  of  such  a  bene- 
ficiary." But  where  the  mortgagee  assigns  his  mortgage  as 
security  for  an  advance  of  money,  w^hich  he  also  covenants 
to  pay,  he  stands  to  gome  extent  as  a  surety,  and  cannot  be 
enjoined  by  the  assignee  from  suing  the  mortgagor  upon  his 
covenant,  unless  the  assignee  release  him  from  his  own  cov- 
enant, and  reconvey  any  estate  of  the  mortgagee  included  in 
the  second  mortgage.^  So,  where  an  assignment  is  made  by 
an  instrument  not  under  seal,  nor  attested,  acknowledged,  or 
recorded  ;  the  mortgagee  may  maintain  a  scire  facias  for  the 
benefit  of  the  assignee.^ 

49.  Where  the  assignee  of  a  mortgage  has  entered  to  fore- 
close, and  afterwards  releases  to  the  assignor  "  all  the  estate, 
right,  &c.,  by  force  of  the  conveyance  made  thereof  by  him, 
&c.,  to  hold  in  like  manner  as  if  he  had  never  conveyed  the 
same,  &c. ;"  the  assignor  may  avail  himself  of  the  entry  for 
the  purpose  of  foreclosure.* 

50.  If  a  purchaser  from  the  mortgagor,  pending  a  bill 
against  the  latter  for  foreclosure,  takes  an  assignment  of  the 
mortgage,  he  acquires  all  the  rights  of  the  mortgagor,  dis- 
charged of  incumbrance  ;  but  he  may  proceed  with  the  suit, 
(especially  if  the  mortgagee  does  not  object,)  to  a  decree  of 
foreclosure  and  sale,  in  order  to  perfect  his  title.'^  So  it  has 
been  held  that  the  owner  of  the  equity,  uniting  it  with  the 

1  Barraque  v.  Maunel,  2  Eng.  51G  ;  ^  «  Partridge  v.  rartridge,  38   Puiin. 

Pryor  v.  Wood,  31  Penn.  1J:2.  78.  ,,    ,     „       ^  c,      ,    ,^.1 

•i  Gurney  v.  Scnping,  2  Phill.  40.  *  Cutts  v.  lork,  &c.,  G  Sliepl.  191. 

•^  ^^  5  Mobile,  &c.  v.  Hunt,  8  Ala.  8(0. 


(o)  In  Missouri,  the  assignee  of  a  mortgage  may  sue  for  the  dehl  in  his 
own  name.     Crinion  v.  Nelson,  7  Mis.  4  66. 
VOL.   I.  48 


566  THE    LAW   OF   MORTGAGES.  [CH.    XVIII. 

mortgage,  may  sue  out  a  scire  facias  in  the  mortgagee's 
name  against  the  mortgagor,  with  notice  to  himself,  recover 
judgment,  and  sell  the  estate.^ 

51.  It  is  no  defence  to  an  action  of  ejectment,  brought  by  a 
mortgagor  against  a  third  person,  that  before  commencement 
of  suit  the  latter  paid  the  money  due  on  the  bond  secured  by 
the  mortgage  ;  although,  since  the  commencement  of  suit, 
he  has  taken  a  formal  assignment  of  the  mortgage ;  such 
payment  giving  the  defendant  only  an  equitable  title  to  the 
land.2 

52.  In  the  following  case,  one  claiming  to  be  an  equitable 
assignee  was  held  not  entitled  to  pursue  an  action  com- 
menced by  the  mortgagee.  Mortgage  by  tenants  in  common 
to  secure  the  debt  of  one  of  them.  The  tenants  afterwards 
transferred  their  respective  titles  to  different  purchasers,  who 
made  partition.  The  mortgagee  then  brought  separate  ac- 
tions against  such  purchasers,  for  their  respective  portions  of 
the  land  ;  and  the  purchaser  from  the  debtor,  to  whom,  at 
the  time  of  purchase,  notice  was  given  that  he  would  be 
bound  to  pay  the  mortgage,  paid  the  whole  amount  due,  in 
discharge  of  the  suit  against  him,  under  an  agreement  that 
he  should  thereby  become  owner  of  the  mortgage.  Held,  he 
was  not  entitled  to  pursue  the  action  against  the  other  pur- 
chaser, in  order  to  compel  him  to  contribute  half  of  the  debt.^ 
Shaw,  C.  J.,  says:^  —  "  This  claim,  on  the  part  of  Green,  is 
purely  equitable,  in  the  nature  of  an  equitable  assignment; 
and  if  he  cannot  maintain  it  on  this  ground,  he  cannot  main- 
tain it  at  all.  If  the  payment  made  by  Green  was,  strictly 
speaking,  a  payment  of  the  whole  mortgage,  it  would  be  a 
bar  to  both  actions,  both  being  brought  to  recover  payment 
of  one  and  the  same  debt.  But  supposing  it  intended  to  be 
a  payment  of  one  half,  and  a  purchase  of  the  plaintiff's  right 
to  the  other  half,  the  Court  are  of  opinion  that  Green  has  no 
equity.     He  took  Daniel  S.  Workman's  right  only,  and  that 

1  Moore  v.  Harrisburg,  &c.,  8  Watts,        ^  Cook  v.  Hinsdale,  4  Cush.  134. 
138.  i  Ibid.  137. 

■■^  Den  V.  Dimon,  5  Halst.  158. 


CH.  XYIII.]  ASSIGNMENT.  567 

right  was  to  redeem  the  estate  upon  the.  full  payment  of 
Daniel  S.  Workman's  debt.  Sidney  S.  Workman's  estate, 
which  came  to  the  defendant,  was  liable  for  it  in  law,  but 
it  was  in  the  nature  of  a  suretyship.  If  the  suit  had  been 
brought  against  Green  alone,  to  charge  the  whole  mortgage 
debt  on  the  estate  held  by  him,  we  think  he  would  have  had 
no  claim  for  contribution  from  the  tenant  in  this  case.  In 
paying  the  whole  mortgage,  he  in  effect  paid  the  debt  for 
which  his  estate  was  primarily  bound,  to  the  exemption  of 
the  estate  of  the  tenant ;  and  he  was  in  effect  paying  his 
own  debt ;  he  had  no  right  in  equity,  therefore,  to  prosecute 
this  suit  for  his  own  benefit  in  the  name  of  the  nominal 
plaintiff." 

53.  A  mortgagee,  who  has  assigned  his  bond  and  mort- 
gage, with  guaranty,  may  take  further  security  in  his  own 
name  from  the  mortgagor,  without  the  knowledge  of  the  as- 
signee, but  which  will  enure  to  his  benefit.  And  the  mort- 
gagee may  have  the  benefit  of  such  security,  till  fully  indem- 
nified from  the  guaranty.  A  subsequent  creditor,  who  would 
oblige  the  mortgagee  or  his  assignee  to  satisfy  his  debt  from 
the  mortgage  security,  must  make  the  assignee  party  to  a 
bill  for  that  purpose ;  otherwise,  no  sale  can  be  decreed,  in 
order  to  ascertain  the  sufficiency  of  the  security.^ 

54.  The  assignment  of  a  mortgage  may  acquire  additional 
efficacy  from  acts  done  after  such  assignment  by  the  assignor. 
Where  a  mortgage  is  assigned,  any  interest  subsequently 
acquired  by  the  assignor  enures  to  confirm  the  assignment.^ 

55.  It  is  said  in  an  old  case,  "  if  a  mortgagee  in  posses- 
sion assigneth  over,  if  the  mortgagor  prefer  his  bill,  upon 
supposition  that  the  debt  is  satisfied,  and  to  have  an  account 
of  the  surplus  ;  there  he  must  make  the  mortgagee  and  all 
the  assignees  parties."  3  (See  Parties.)  But  the  later  doc- 
trine is,  that  if  the  mortgagee,  not  in  possession,  assigns 
the  mortgage,  with  the  concurrence  of  the  mortgagor,  he 
need  not  be  made  party  to  a  bill  for  redemption ;  otherwise, 

1  Evcrtson  v.  Bootli,  19  John.  486.  '^  2  Frcem.  59. 

^  James  v.  Morey,  2  Cow.  248. 


568  THE    LAW    OF   MORTGAGES.  [cil.  XVIII. 

where  the  mortgagor  does  not  thus  concur.^  And  where  a 
mortgagor  files  a  bill  against  the  assignee  of  the  mortgage, 
praying  an  account  of  what  is  due  for  principal  and  interest, 
and  also  for  rents  upon  a  lease  made  by  him  to  the  mort- 
gagee, and  for  permission  to  redeem ;  the  mortgagee  should 
be  made  a  party  defendant.^ 

56.  Where  the  assignee  of  a  mortgage  files  a  bill  for  fore- 
closure against  the  mortgagor,  it  is  held  that  the  mortgagee 
need  not  be  made  a  party,  though  an  account  is  to  be  taken 
of  the  rents  and  profits  during  his  possession ;  because  the 
amount  may  be  proved"  by  other  evidence,  and  tlie  mortgagee 
would  not  be  bound  by  any  judgment  in  the  suit,  nor  could 
any  relief  be  had  against  him.'^ 

57.  With  regard  to  the  consideration  of  an  assignment,  it 
is  held  that  such  consideration  is  open  to  inquiry,  as  much 
as  that  of  the  indorsement  of  the  accompanying  note.*  But 
a  mortgage  is  not  affected  by  selling  it  for  less  than  its  nom- 
inal value.^  (/?)      And  the  defendant  in    a  foreclosure   suit 

1  1  Pow.  152.  4  Bennett  v.  Solomon,  6  Cal.  134. 

2  Wolcott  V.  Sullivan,  1  Edw.  409.  ^  Warner  v.  Gouverneur,  1   Barb. 

3  Wliitney    v.   McKiuney,   7   John.  36.     See   Prvor   v.  Wood,   31   Penn. 
Ch.  144.  142. 


(p)  Where  an  assignee  of  the  mortgagor  brings  a  bill  in  equity  to  redeem 
a_2;ai!!st  the  mortgagee  and  mortgagor,  he  must  prove  a  valuable  consideration 
for  the  assignment.  The  following  remarks  of  Ruffin,  C.  J.,  refer  to  an  impor- 
tant and  probably  well-settled  distinction  upon  this  subject :  —  "  If  this  had 
been  the  case  of  an  ordinary  mortgage  upon  its  face,  and  Hough  had  made 
a  formal  deed  of  assignment  of  the  equity  of  redemption  to  the  plaintiff,  he 
might  have  filed  a  bill  against  Mask  for  redemption,  witliout  bringing 
Hough  into  the  cause,  or  proving  the  consideration  moving  from  himself  to 
Hough,  as  the  price  of  the  equity  of  redemption.  For  a  plaintiff  need  not 
make  a  person  a  party,  who  according  to  the  flicts  alleged  in  the  bill  has  no 
interest  in  the  subject,  and  although  it  recjuires  a  consideration  to  raise  a 
trust,  yet,  after  it  is  well  raised,  it  may  be  transferred,  as  against  the  trustee, 
voluntarily.  To  Mask  it  would  be  immaterial  upon  what  consideration 
Hougli  might  have  assigned  it  to  the  plaintiff;  and  it  would  therefore  be 
sufficient,  in  the  case  supposed,  for  the  plaintiff  to  prove  the  assignment,  on 
the  hearing.  AVe  do  not  say  that  it  would  be  so  in  this  case,  since  it  is  in 
form  not  an  assignment  of  a  clear  and  admitted  equity  of  redemption,  but 


CH.  XVIir.]  ASSIGNMENT.  569 

brought  by  an  assignee  cannot  inquire  into  the  consideration 
of  the  assignment,  except  with  reference  to  the  claim  of  pay- 
ment or  set-off.^  Upon  similar  ground,  in  a  suit  to  foreclose 
by  the  assignee  of  a  mortgage,  an  answer,  that  the  original 
mortgagee,  and  not  the  assignee,  was  the  real  party  in  inter- 
est, was  held  bad  on  demurrer.^  Where  the  assignee  pur- 
chases for  less  than  the  amount  due  on  the  mortgage,  it  has 
been  suggested  that  he  would  be  entitled  to  claim  only  the 
sum  actually  paid.  But  the  rule  seems  well  established  to 
the  contrary;  except  in  cases  of  trust,  express  or  implied,  for 
the  owner,  who  would  then  be  entitled  to  the  benefit  of  any 
advantageous  bargain  of  the  assignee.     Generally,  in  order 

1  Adair  v.  Adair,  5  Mich.  204.  ^'L-jmson  v.  Falls,  G  Ind.  309. 

an  assignment  of  a  covenant  or  executory  agreement  from  Mask  to  Hough 
to  convey  the  land  to  him  upon  the  payment  of  a  certain  sum.  Perhaps, 
therefore,  it  was  indispensable  in  this  case,  that  the  plaintiff  should  bring  in 
Hou<i;h,  as  well  as  the  mortjjasee.  But,  admittin";  that  it  was  not,  and  that 
the  plaintiff  might  have  had  a  decree  upon  a  bill  against  Mask  alone,  yet  he 
has  not  thought  proper  to  proceed  in  that  way  and  claim  a  decree  against 
the  mortgagee  upon  the  apparent  assignment  to  him,  leaving  it  to  the  as- 
signor to  assert  his  right  afterwards  in  a  bill  of  his  own,  denying  the  assign- 
ment or  its  legal  efficacy.  On  the  contrary,  the  plaintiff  has  chosen  to  pro- 
ceed against  both  the  mortgagee  and  mortgagor ;  and  thus  he  puts,  hini.self, 
in  issue,  the  assignment  in  respect  of  both  those  parties,  and  is,  conse- 
quently, bound  to  show  one  which  is  efficacious,  and  which  the  Court  will 
specifically  uphold  against  the  assignor,  so  as  to  conclude  him  by  a  declara- 
tion of  the  assignment  in  the  decree  in  this  suit.  Hence  it  became  neces- 
sary in  the  bill  to  set  out  not  only  the  naked  flict  of  the  assignment  from 
Hough  to  Medley,  but  also  that  it  was  made  on  a  valuable  consideration. 
Equity  does  not  act  for  a  mere  volunteer,  but  only  for  a  real  purchaser,  at  a 
fair  price.  The  plaintiff  has  endeavored  to  be  such  a  purchaser.  But  he 
entirely  fails  in  the  attempt.  It  is  urged  for  him,  that  the  assignment  itself 
states,  that  he  had  fully  paid  and  satisfied  Hough  for  his  interest  in  the  land, 
and  that  such  an  acknowledgment  is  not  to  be  disregarded,  but  must  be 
deemed  sufficient  evidence  prima  facie  of  a  valuable  consideration.  But  m 
equity  there  must  be  proof  of  an  actual  consideration  ;  and  these  general 
words,  inserted  merely  as  formal  parts  of  an  instrument,  can  by  no  means 
be  admitted  as  conclusive,  that  some  valuable  consideration  was  actually 
paid  or  secured,  much  less  that  an  adequate  consideration  was  paid  or  se- 
cured." Medley  v.  Mask,  4  Ired.  Eq.  343-345. 
48* 


570  THE   LAW   OF   MORTGAGES.  [cil.  XVIII. 

to  redeem,  the  amount  due  on  the  mortgage  must  be  paid.^ 
In  a  case  above  referred  to,^  Edmonds,  J.,  says:  — "But  if 
it  was  a  loan,  and  usurious  in  its  character,  so  far  as  to  viti- 
ate the  title  of  the  Life  and  Trust  Company,  as  soon  as  the 
loan  was  discharged  the  taint  would  be  removed,  and  the 
mortgagor  would  cease  to  have  anything  to  complain  of.     I 
am  not  aware  that  the  prohibitions  against  usury  have  ever 
been  carried  so  far,  as  to  determine  that  an  obligation  un- 
tainted in  its  concoction  is  rendered  void,  and  the  debtor  dis- 
charged from  all  liability  upon  it  by  the  simple  fact  that  the 
owner  had  hypothecated  it  as  security  for  a  usurious  loan. 
The  relation  of  principal  and  surety  does  not  in  fact  exist 
between  Warner  and  Gouverneur's  executors.     As  between 
them,  he  is  the  debtor,  and  they  the  creditors.     It  is  only 
between  them  on  the  one  side,  and  the  Life  and  Trust  Com- 
pany on  the  other,  that  the  relation  of  principal  and  surety 
may  be  supposed  to  exist.     When  this  bill  was  filed,  that 
company  had  ceased  to  have  any  interest  in  the  mortgage. 
Even  the  quasi  relation  of  principal  and  surety  had  ceased 
to  exist ;  and  the  parties  had  returned  to  their  original  posi- 
tion of  debtor  and  creditor  in  a  contract  uncontaminated  by 
any  illegal  consideration.     It  is  therefore  unnecessary  to  in- 
quire, whether  the  transaction  between  Gouverneur  and  the 
Life  and  Trust  Company  was  usurious  or  not,  or  if  usurious, 
what  the  effect  would  be  upon  the  rights  or  obligations  of  the 
mortgagor.     It  is  enough  to  know  that  the  contract  which 
the  executors  are  seeking  to  enforce  is  itself  untainted  with 
any  illegality,  and  is  held  by  them  by  a  title  equally  uncon- 
taminated.    For  if  they  take  as  purchasers  from  the  com- 
pany, it  was  not  illegal  to  buy  or  sell  the  security  below  par; 
and  if  they  retake  as  borrowers  who  have  paid  up  the  loan, 
they  have  removed  all  taint,  and  are  restored  to  their  original 
rights  as  against  the  mortgagor."     So  a  purchaser,  subject 
to  a  mortgage,  cannot  offer  evidence,  that  it  was  assigned 
for  a  less  amount  than  was  secured  by  it ;  and  where  he 

1  Coote,  355;  Pease  v.  Benson,  28  Maine,  336.  '•^  1  Barb.  39. 


CH.  XVIII.]  ASSIGNMENT.  571 

gives  further  security  for  the  forbearance  of  the  assignee,  the 
former  mortgage  is  not  void  from  usury,  but  the  assignee,  on 
foreclosure,  must  credit  all  such  additions.^ 

58.  Where  notes,  secured  by  mortgage,  were,  with  the 
mortgage,  assigned  by  the  payee  in  payment  for  slaves  in- 
troduced into  the  State  contrary  to  law ;  held,  the  mortgage 
might  still  be  enforced  by  the  assignee.'^ 

59.  Where  an  assignment  of  a  mortgage  is  made  to  sev- 
eral, each  of  whom  advances  his  own  portion  of  the  consid- 
eration, and,  by  the  express  terms  of  the  assignment,  is  to 
acquire  a  proportional  interest  in  the  mortgage ;  if  the  por- 
tion advanced  by  any  one  is  fully  paid  by  the  mortgagor, 
and  accepted  by  such  one,  his  interest  in  the  mortgage  is 
fully  discharged.^ 

60.  It  has  been  a  question  much  discussed,  how  far  the 
assignee  of  a  mortgage  is  bound  by  the  actual  state  of  the 
account  between  the  mortgagee  and  mortgagor  at  the  time 
of  assignment ;  that  is,  whether  he  may  claim  what  appears 
to  be  due  upon  the  face  of  the  mortgage,  or  only  what  is 
really  due,  after  deducting  all  payments  and  offsets,  {q) 

61.  In  the  case  of  Matthews  v.  Wallv/yn,^  Baker  having 
taken  a  mortgage  from  Matthews  for  £2,000,  which  was 
paid  by  Shepheard,  the  attorney  of  the  latter,  Matthews  gave 
Shepheard  a  bond  for  £2,000,  and  Baker  assigned  the  mort- 
gaged estate  to  Shepheard,  who  afterwards  deposited  the 
bond  and  deed  with  Hercy,  for  £2,000.  Hercy  requiring 
pay  nf}ent,  Shepheard  applied  to  Wallwyn  for  a  loan  of  £2,000, 
who  agreed  to  open  an  account  with  him  on  a  deposit  of  the 
securities  and  his  own  note.  The  securities  were  accord- 
ingly redeemed  from  Hercy,  and  deposited  by  Shepheard 
with  Wallwyn.     Shepheard  became  bankrupt ;  and,  under  a 

1  Lovett  V.  Dimoud,  4  Edw.  Cli.  22.        »  rurbusli  r-_  Goodwin,  5  Fost.  425. 
'^  Rowan  v.   Adams,  1  S.  &  M.  Ch.        *  4  Ves.  118. 
45. 


(q)  The  assignee  of  a  mortgajre  is  not  estopped  to  deny  the  mortgagor's 
title.     Great  Falls,  &c.  v.  Worster,  15  N.  II.  412. 


572  THE   LAW    OF    MORTGAGES.  [CH.  XVIII. 

decree  of  chancery,  his  assignees  assigned  the  mortgage  to 
Wallwyn.  Matthews  had  no  notice  of  the  dealings  with 
Hercy  and  Wallwyn.  Shepheard  had  been  in  the  habit  of 
receiving  and  paying  large  sums  on  account  of  Matthews. 
Matthews  files  a  bill  against  Wallwyn  for  redemption  ;  and 
it  was  stated,  that  after  settlement  of  an  account  between 
Matthews  and  Shepheard  in  October,  1794,  which  was  sub- 
sequent to  the  deposit  to  Wallwyn,  Matthews  discovered 
that  Shepheard  had  received  sums  not  accounted  for  by  him, 
and  other  sums  since  the  settlement,  which  being  deducted, 
a  considerable  balance  would  be  due  to  Matthews.  Wall- 
wyn claimed  a  specific  lien  for  their  balance.  The  Lord 
Chancellor  stated  the  question  to  be,  whether  the  assignee 
of  a  mortgage  could  claim  whatever  appeared  to  be  due 
by  the  instrument  itself,  without  regard  to  the  state  of  the 
account  between  the  mortgagee  and  mortgagor.  He  also 
noticed  the  practice  of  conveyancers  to  make  the  mortgagor 
a  party  to  any  assignment,  in  order  to  secure  a  perfect  title ; 
and  referred  to  the  case  of  Lunn  v.  Lodge,  of  which  he  had 
a  note.  In  that  case.  Lodge  mortgaged  to  Pitman,  who  as- 
signed to  St.  John.  The  mortgagor  and  mortgagee  having 
both  become  bankrupt,  the  assignees  of  Lodge  file  a  bill  in 
equity,  alleging  that  nothing  was  due  between  the  estates. 
Lord  Thurlow  ordered  the  master  to  inquire,  what  was  due 
at  the  time  of  the  mortgage ;  what  at  the  time  of  assign- 
ment ;  and  what  remained  due  ;  and  he  reported  $7,000 
due  from  Pitman  to  Lodge.  Held,  the  assignments  should 
not  avail  against  the  estate  of  Lodge.  The  Lord  Chancel- 
lor relied  upon  this  case,  as  a  direct  authority  in  favor  of  the 
plaintiff'  in  this  bill ;  decreed,  that  he  njight  redeem  upon 
payment  of  the  sum  due  on  the  original  mortgage  to  Shep- 
heard ;  and  ordered  an  inquiry  by  the  master  in  the  same 
form  as  above  stated  in  the  other  case. 

62.  And,  in  conformity  with  this  decision,  the  general  rule 
is,  that  an  assignee  takes  the  mortgage  subject  to  all  equities 
between  the  original  parties,  more  especially  where  he  is 
guilty  of  laches,  or  where  the  assignment  is  made  to  secure  a 


CII.  XVirr.J  ASSIGNMENT.  573 

preexisting  debt.^  (r)  Thus  fraud  in  procuring  a  note  or  bond, 
and  mortgage,  may  be  set  up  against  an  assignee-  INFore 
especially  if  transferred  with  notice  of  the  fraudulent  jjurpose 
of  their  inception.^  So  a  mortgage  was  given  by  a  party 
against  whom  an  action  had  been  brought,  without  consider- 
ation, and  for  the  purpose  of  defeating  the  execution  in  such 
action.  The  mortgage  was  made,  subject  to  the  direction, 
and  for  the  benefit,  of  the  mortgagor,  and  to  be  cancelled 
after  termination  of  the  suit.  Held,  the  mortgage  could  not 
be  foreclosed,  even  by  an  assignee  for  full  consideration  and 
without  notice.*  So  an  assignee  with  notice  is  bound  by  a 
promise  of  the  mortgagee  to  repay  from  the  land  money 
expended  on  it.^ 

63.  The  doctrine  is  made  to  rest  in  part  upon  the  ground, 
that  this  would  be  the  rule  adopted  in  a  suit  at  law  upon 
the  covenant  or  bond  to  which  the  mortgage  is  collateral ; 
and  the  assignee  should  stand  no  better  in  equity  than  at 
law.° 

64.  As  against  an  assignee,  even  without  notice,  the  mort- 
gagor has  the  same  rights  as  he  has  against  the  mortgagee, 
and  whatever  he  can  claim,  in  the  way  of  set-off  or  mutual 
credit,  as  against  the  mortgagee,  he  can  claim  equally  against 
the  assignee.  And  if  it  is  stated  in  the  assignment,  that  a 
certain  sum  is  due  for  principal  and  interest,  although  the 
mortgagee  is  bound  by  the  statement,  the  mortgagor  is  not, 
unless  a  party  to  the  assignment.'^ 

1  Glidilen  V.  Hunt,  24  Pick.  221 ;  ^  Godeffroy  v.  Caldwell,  2  Cal.  489. 
Clark  V.  Flint,  22  Pick.  231 ;  U.  S.  v.  ^  Matthews  v.  Wallwyn,  4  Ves.  118. 
Sturges,  Paine,  525.  "^  James  v.  Morey,  2  Cow.  247  ;  Wol- 

2  Marshall  v.  Billingsbj^  7  Ind.  250.  cott  v.  Sullivan,  1  Edw.  4U2 ;  Xorrish 

3  Chamberlain  v.  Barnes,  26  Barb.  v.  Marshall,  5  Mad.  481  ;  Carcw  v. 
160.  Johnston,  2  Seh.  &  Lef.  2'JG  ;  Hubbard 

*  Westfall  V.  Jones,  23  Barb.  9.  v.  Turner,  2  McL.  519. 


(?•)  In  Chambers  v.  Goldwin,  1  Smith,  252,  it  was  held,  that  in  jieneral 
the  assignee  must  take  the  risk  of  the  correctness  of  the  amount  stated  to  be 
due;  but  if  the  mortgagor  delays  for  a  long  time,  and  deals  with  (he  assignee 
without  objection,  he  cannot  have  a  decree  to  surcharge  and  falsily,  but 
must  take  his  remedy  against  the  mortgagee. 


574  THE    LAAV    OF    MORTGAGES.  [CH.  XYIII. 

65.  But  if  the  mortgage  is  given  to  secure  a  negotiable 
note,  and  both  are  assigned  before  maturity  to  a  bond  fide 
indorsee;  he  is  held  to  take  them,  clear  of  any  equities  be- 
tween the  original  parties.^  (s)  The  mortgage  passes  as  an 
incident  to  the  note.^ 

66.  So  the  assignee  is  not  subject  to  the  latent  equities  of 
strangers,  of  which  he  has  no  notice.^  Nor  is  he  required  for 
his  own  protection  to  give  notice  of  the  assignment  to  a  sub- 
sequent assignee  of,  or  purchaser  from,  the  mortgagee."^  So, 
where  one  had  acquired  an  equitable  right  to  the  assignment 
of  a  bond  and  mortgage,  before  an  equitable  right  of  set-ofF 
accrued  to  the  mortgagor ;  held  immaterial,  that  the  mort- 
gagor was  ignorant  of  the  equitable  assignment,  he  not  hav- 
ing parted  with  any  security  in  consequence.^  So  a  bond 
fide  assignee  of  a  mortgage  does  not  take  it  subject  to  any 

equities  between  the  mortgagor  and  his  grantor,  growing 
out  of  the  fraud  of  the  mortgagor  in  procuring  the  title  to 
the  land.^  So,  where  one  partner  mortgages  to  another  the 
effects  of  the  firm,  to  pay  a  fictitious  debt,  a  bond  fide  as- 
signee of  the  mortgage,  without  notice,  and  for  consideration, 
takes  a  good  title." 

67.  A  bill  against  a  bond  fide  assignee  must  allege  notice 
of  the  complainant's  equities  against  the  mortgagee,  in  order 
to  bind  the  defendant  by  them.^ 

68.  The  declarations  of  a  mortgagee,  made  before  the 
mortgage  was  due,  are  inadmissible  as  against  purchasers 
under  the  mortgage.^ 

69.  And  in  a  late  case  in  Maine,  the  general  doctrine  is 

1  Reeves  v.  Scully,  AValk.  Ch.  248 ;  "  Bloomer  v.  Henderson,  8  Mich. 
3  Chand.  83  ;  4  Ibid.  153.  395. 

2  Fisher  v.  Otis,  3  Chand.  83;  Mar-  '^  Potts  v.  Blackwell,  4  Jones,  Eq. 
tineau  v.  McCollum,  4  Chand.  153.  58. 

3  Prvor  V.  Wood,  31  Penn.  142.  *  Cicotte  v.  Gagnier,  2  Mich.  381. 
*  2  Cow.  246.  *•  Stark  v.  BosweU,  6  Hill,  405. 

5  Smith  V.  Clark,  4  Paige,  Ch.  368. 


(s)  But  the  transfer  of  a  mortgage-note  overdue  subjects  it  to  the  same 
equities  as  if  it  were  not  secured  by  mortgage.  Howard  v.  Greshara,  27 
Geo.  34  7. 


CH.  XVIII.]  ASSIGNMENT.  575 

laid  down,  that  the  assignee  of  a  mortgage,  without  notice, 
stands  like  a  grantee  of  land  without  notice.  Thus  he  was 
held  not  subject  to  a  bill  in  equity,  brought  for  the  purpose 
of  correcting  a  mistake,  as  to  the  quantity  of  land,  in  the 
deed  to  the  mortgagor.^ 

70.  The  assignee  will  not  be  subject  to  any  payments  or 
set-ofFs  which  occur  after  the  assignment,  and  notice  thereof 
to  the  mortgagor.  And  implied  notice  is  sufficient.  Thus 
A.'s  wife  joined  in  a  mortgage,  to  secure  the  payment  for 
two  hundred  and  fifty  shares  of  a  bank,  to  which  A.  had 
subscribed.  The  mortgage  was  assigned  to  trustees,  by 
a  resolution  of  the  directors,  to  secure  B.  for  debts  due  to 
him  from  the  bank.  After  the  assignment,  A.  made  several 
transfers  of  stocks  which  were  refused  by  B.,  to  pay  the 
mortgage,  and  also  made  loans  to  the  bank  after  that  time. 
In  a  suit  by  the  special  receiver  of  the  bank  to  foreclose  the 
mortgage,  which  had  been  assigned  to  him  by  the  trustees, 
and  also  by  the  general  receiver  of  the  bank  ;  held,  a  bank- 
ing corporation,  under  the  general  banking  law,  had  the  right 
to  divide  its  business,  and  appoint  separate  committees  of 
its  directors  to  the  different  departments  of  business  ;  that  a 
resolution  of  the  committee  of  directors,  having  in  charge 
the  securities  and  investments  of  the  bank,  was  valid  to 
assign  a  mortgage,  and  the  ratification  of  the  resolution,  by 
the  whole  board  of  directors,  was  a  compliance  with  the 
statute  requiring  a  transfer  of  over  $1,000  to  be  made  by  a 
resolution  of  a  board  of  directors ;  that  the  assignment  at 
once  vested  the  mortgage  in  those  for  whose  benefit  it  was 
made,  and  the  beneficiary,  who  had  paid  a  valuable  and 
adequate  consideration,  and  who  did  not  appear  to  have  any 
notice  of  its  illegality,  at  once  became  the  assignee  of  the 
mortgage  :  and  that  the  set-offs,  which  A.  claimed,  as  they 
accrued  to  him  after  the  assignment,  of  which,  as  he  was 
chairman  of  the  finance  committee,  he  was  presumed  to 
have  notice,  and  arose  by  his  payment  to  the  bank,  and  not 
to  the  assignee,  could  not  be  allowed.^ 
1  Pierce  v.  Faunce,  47  Maine,  507.  ^  Palmer  v.  Yates,  3  Sandf.  137. 


576  THE   LAW   OF   MORTGAGES.  [CH.  XVIII. 

71.  The  question  has  arisen,  how  far  the  assignee  of  a 
mortgage  is  subject  to  an  offset  on  the  part  of  the  mort- 
gagor, growing  oat  of  a  lease  made  by  him  to  the  mortgagee ; 
upon  which  he  would  have  had  a  valid  claim  for  rent  against 
the  mortgagee  himself.  Upon  this  subject  it  is  held,  that, 
although  a  mortgagee  is  tenant  to  the  mortgagor,  in  virtue 
of  a  lease  executed  at  the  same  time  with  the  mortgage,  but 
without  any  agreement  to  connect  the  lease  and  mortgage 
inseparably,  or  that  the  rent  shall  be  secured  at  all  times  by 
taking  it  out  of  the  principal  or  interest  of  the  money  loaned ; 
the  right  to  set  off  rents  against  the  mortgage  debt  does  not 
necessarily  attach  as  an  inherent  quality  of  the  contract,  so 
as  to  prevent  an  assignment  of  the  mortgage,  with  the  usual 
effect  of  such  assignment.  The  assignee  does  not  stand 
upon  any  ground  more  favorable,  than  if  the  mortgagor  had 
permitted  his  mortgagee  to  take  possession  under  the  mort- 
gage without  a  lease  ;  in  which  case,  upon  assignment  of 
the  mortgage,  the  only  equity  which  the  mortgagor  could 
claim  would  have  been,  to  set  off  the  amount  of  rents  due  at 
the  time  of  receiving  notice  of  the  assignment.  If  a  mort- 
gagee is  suffered  to  retain  possession,  the  mortgagor,  after 
an  assignment  without  notice,  cannot  charge  the  assignee 
with  subsequently  accruing  rents.  His  remedy  is,  to  evict 
the  original  mortgagee,  or  compel  him  to  account  and  pay 
an  occupation  rent  for  the  time  he  may  thus  hold  possession 
after  assignment.  So,  in  the  present  case,  though  the  mort- 
gagor could  not  enter,  after  notice  of  the  assignment,  except 
for  non-payment  of  rent  under  the  lease  ;  yet,  by  virtue  of 
the  covenants,  he  could  have  pursued  that  and  other  legal 
remedies  for  the  recovery  of  the  possession,  or  the  rents  as 
they  fell  due.  With  these  remedies,  secured  by  express  con- 
tract, he  must  be  presumed  to  have  been  content,  till  the 
contrary  appears.  Another  ground  for  this  decision  is,  that, 
if  the  mortgagor  had  distrained  for  rent,  the  assignee  of  the 
mortgagee  could  not  have  set  off  the  interest  against  such 
rent,  either  in  law  or  equity.^ 

1  Wolcott  V.  SulliVcan,  1  Edw.  399. 


CH.   XVIII.]  ASSIGNMENT.  577 

72.  After  a  mortgagor  had  conveyed  his  equity  of  redemp- 
tion, the  mortgagee  levied  upon  the  land  an  execution  recov- 
ered in  a  suit  upon  the  mortgage  note.  An  assignee  of  the 
mortgage  afterwards  brings  a  suit  to  foreclose  against  the 
assignee  of  the  mortgagor.  Held,  the  price  at  the  auction 
sale  could  not  be  set  oft".^ 

73.  The  assignment  of  a  mortgage  involves  no  implied 
guaranty  as  to  the  amount  due  thereon.  Thus,  in  Bree  v. 
Holbech,^  an  administrator  with  the  will  annexed  found 
among  the  papers  of  the  deceased  a  mortgage,  and  assigned 
it  for  full  value,  covenanting  that  neither  the  testator  nor 
himself  had  done  any  act  to  incumber  the  mortgaged  estate. 
The  mortgage  turned  out  to  be  forged  ;  but,  as  there  was  no 
evidence  that  the  administrator  knew  it,  Lord  Mansfield 
held  that  the  purchaser  could  not  recover  back  what  he  had 
paid  ;  remarking,  that  the  administrator  "  did  not  covenant 
for  the  goodness  of  the  title,  but  only  that  neither  he  nor  the 
testator  had  incumbered  the  estate.  It  was  incumbent  on 
the  plaintiff  to  look  to  the  goodness  of  it."  So,  on  the  other 
hand,  where  the  distributee  of  an  estate  has  received  from 
the  executors  the  assignment  of  a  mortgage,  to  meet  his 
share  of  the  assets,  he  does  not  thereby  guarantee  the  suffi- 
ciency of  the  mortgaged  property  to  extinguish  the  amount 
for  which  it  was  pledged,  and  become  personally  liable  to 
the  executors  for  the  nominal  excess  of  the  mortgage  over 
his  proportion  of  the  estate.  He  is  only  bound  to  use  dili- 
gence and  good  faith  in  the  collection  of  the  mortgage,  and 
pay  over  any  surplus,  of  its  actual  proceeds,  after  satisfying 
his  own  claims.^  [t) 

74.  To  avoid  the  inconvenience  and  hardship  of  charging 

1  HoUister  v.  Dillon,  4  Ohio,  N.  S.  ^  Hammond  v.  Washington,  1  How. 
197.  14. 

^  Dougl.  655. 


(t)  In  the  appropriation  of  the  proceeds  of  a  sheriff's  sale,  the  assignee 
of  a  mortgage  which  has  priority  of  lien  will  be  preferred  to  a  judgment 
creditor,  who  holds  the  guaranty  of  the  mortgagee  for  his  judgment,  though 
prior  in  date  to  the  assignment.     Moore's  Appeal,  7  W.  &  S.  298. 

VOL.  I.  49 


678  THE   LAW   OF   MORTGAGES.  [CH.   XVIII. 

an  assignee  with  deductions  and  discounts  of  which  he  may 
have  had  no  notice,  the  practice  has  been  recommended,  of 
making  the  mortgagor  a  party  to  the  assignment  of  the 
mortgage,  thus,  of  course,  precluding  him  from  a  denial,  that 
the  face  of  the  mortgage  exhibits  the  true  state  of  the  mort- 
gagee's claim.  Upon  this  subject  Lord  Loughborough  re- 
marks as  follows  :  "  It  was  supposed  that  in  practice  there 
is  no  occasion  to  make  the  mortgagor  a  party,  and  in  some 
cases  it  may  not  be  possible  to  make  him  a  party  to  the 
assignment;  and  to  hold  that  the  assignee  of  a  mortgage  is 
bound  to  settle  the  accounts  of  the  person  from  whom  he 
takes  the  assignment,  would  tend  to  embarrass  transfers  of 
mortgages.  I  have  got  all  the  information  I  could,  and  I 
think  I  have  got  the  best.  T)\e  result  is,  that  persons  most 
conversant  in  conveyancing,  hold  it  extremely  unfit  and  very 
rash  and  a  very  indifferent  security,  to  take  an  assignment 
of  a  mortgage  without  the  privity  of  the  mortgagor  as  to 
the  sum  really  due.  No  conveyancer  of  established  practice 
would  recommend  it  as  a  good  title  to  take  an  assignment 
of  a  mortgage  without  making  the  mortgagor  a  party,  and 
being  satisfied  that  the  money  was  really  due."  ^ 

75.  An  additional  reason  for  the  course  recommended  is 
stated  as  follows :  —  A  mortgagee  in  possession  being  re- 
garded in  some  sense  as  trustee,  and  therefore  accountable  in 
equity  for  the  profits,  if  he  assign  the  mortgage  without  the 
mortgagor's  consent,  he  will  be  held  accountable  for  the  sub- 
sequent profits  ;  because,  having  turned  the  mortgagor  out  of 
possession,  he  is  bound  to  take  care  in  whose  hands  he  places 
the  estate.^ 

76.  Chancellor  Kent  says,^  more  particularly  with  reference 
to  the  recording-  of  assignments  :  "  The  abuse  to  which  these 
clandestine  assignments  of  mortgages  (and  which,  in  judg- 
ment of  law,  are  extinguished  by  merger)  are  subject,  ought 
to  impose  upon   persons  who  traffic  in  such  securities  the 

^  Matthews  ?;.  Wallwyn,  4  Ves.  128  ;        ^  James  v.  Johnson,  6  Johns.   Ch. 
1  Pow.  152.  432. 

■^  Coote,  354;  1  Eq.  Cas.  Abr.  328; 
1  Pow.  152. 


CH.   XVIII.]  ASSIGNMENT.  579 

duty  of  making  their  assignments,  as  soon  as  possible,  mat- 
ter of  record.  If  they  do  not,  it  is  their  own  fault  or  negli- 
gence, and  they  ought  to  suffer,  rather  than  the  subsequent 
purchaser,  who  is  deceived  by  appearances,  and  has  no  notice 
or  record  to  guide  him.  I  am  more  and  more  inclined  not 
to  extend  equitable  refinements  upon  the  plain  common-law 
doctrine  of  merger.  They  never  have  been  and  never  ought 
to  be  carried  so  far  as  to  affect  a  subsequent  purchaser,  or 
judgment,  or  mortgage  creditor,  without  notice." 

77.  A  purchaser  of  mortgaged  property  does  not  make 
himself  liable  for  the  mortgage  debt,  merely  by  becoming 
party,  or  giving  his  assent,  to  an  assignment  of  the  mortgage. 
Thus  A.,  B.,  and  C.  became  entitled  to  mortgaged  property, 
unequally.  A  deed  was  executed,  reciting  that  the  mort- 
gagee had  required  payment  of  the  debt,  from  A.,  B.,  and  C, 
pro  rata,  that  they  "  were  unable  to  pay  it,  and  had  applied 
to  D.  and  E.  to  advance  the  amount,  which  they  had  con- 
sented to  do,  upon  having  repayment,  with  interest,  secured 
as  thereinafter  stated  ; "  and  proceeded  to  transfer  the  mort- 
gage security  to  D.  and  E.,  subject  to  redemption  on  pay- 
ment of  principal  and  interest  by  A.,  B.,  and  C,  pro  raid,  on 
a  day  newly  fixed ;  and  A.,  B.,  and  C.  covenanted  to  pay 
accordingly,  and  also  gave  a  bond  of  even  date  with  the 
mortgage.  Held,  merely  a  transfer  of  the  mortgage ;  and 
after  the  deaths  of  A.,  B.,  and  C,  their  personal  estate  was 
not  liable  for  the  debt.^ 

78.  But  if  a  mortgagor  induces  a  third  person  to  purchase 
the  mortgage,  by  promising  in  writing  to  pay,  with  interest, 
the  whole  sum  advanced ;  an  assignee  of  the  mortgagor  can- 
not redeem  without  paying  such  sum.^ 

79.  A  mortgagor  incurs  no  special  liability  in  consequence 
of  the  assignment  of  the  mortgage  itj  trust.  The  rule  in 
equity,  of  responsibility  for  the  application  of  a  trust  fund, 
does  not  apply  to  such  a  case.  Thus,  where  a  mortgagee 
assigned  his  mortgage  and  the  accompanying  bond  and  war- 

1  Hedges  v.  Hedges,  12  Eng.  Law        -  Holbrook    v.    Worcester,    &c.    2 
&  Eq.  331.  Curt.  244. 


580  THE   LAW   OF  MORTGAGES.  [CH.   XVIII. 

rant  to  two  trustees,  in  trust  for  the  use  of  his  daughter  and 
her  children ;  held,  payment  to  one  of  the  trustees  discharged 
the  debt.i  The  Court  say  :  "  Between  the  mortgagor  and  the 
mortgagee,  the  money  was  not  a  trust  fund.  It  was  an  ordi- 
nary debt  for  the  price  of  the  property,  on  which  the  mort- 
gage stood  as  a  security ;  and  what  mattered  it  to  the  mort- 
gagor, that  the  mortgagee  assigned  the  mortgage  in  trust 
for  a  stranger?  He  could  not  change  the  nature  of  the  orig- 
inal relation,  or  increase  his  debtor's  responsibility  and  risk 
on  the  score  of  mispayment.  A  purchaser  from  trustees, 
knowing  that  he  must  see  to  the  application  of  the  purchase- 
money,  knows  what  he  has  to  encounter  when  he  makes  his 
bargain,  and  he  takes  the  responsibility  accordingly.  But  he 
incurs  no  responsibility  of  which  he  was  not  apprised ;  for 
where  the  sale  is  for  a  breach  of  trust,  he  is  not  affected  by 
it  if  he  knew  not  of  it.  There  was  no  trust  in  existence 
when  this  mortgage  was  executed,  and  the  assignment  did 
no  more  than  substitute  joint  creditors  for  a  single  one.  It 
is  very  clear,  then,  that  payment  to  a  joint  creditor,  of  which 
his  receipt  is  evidence,  discharges  the  debt." 

80.  It  is  the  general,  and  probably  universal  practice,  in 
the  United  States,  to  record  or  register  the  assignments  of 
mortgages,  as  well  as  the  mortgages  themselves. 

81.  In  reference  to  a  subsequent  purchaser  from  the  mort- 
gagor, even  without  notice,  an  assignment  for  valuable  con- 
sideration is  held  valid  without  registry.^  {u) 

82.  The  question  has  arisen,  whether  such  registration  is 
equivalent  to  actual  notice  of  the  assignment,  in  reference  to 
the  mortgagor,  or  other  parties,  subsequently  dealing  with 
the  mortgagee. 

1  Bowes  V.  Seeger,  8  W.  &  S.  222,  -  Wilson  v.  Kimball,  7  Fost.  300. 

223.  X 


(w)  Though  the  assignment  be  not_reeordeil,  still,  if  the  mortgagor  have 
notice  of  it,  his  claim  for  an  account  and  for  redemption  is  to  be  made  upon 
the  assignee.  Otherwise,  where  he  has  no  notice.  Mitchell  v.  Burnham, 
44  Maine,  286. 


CH.   XVIII.]  ASSIGNMENT.  581 

83.  In  a  leading  case  in  England,^  the  defendant  mort- 
gaged to  Clifton,  who  assigned  to  the  plaintiff  without  the 
defendant's  concurrence,  after  which  the  defendant  made 
payments  to  Clifton.  The  property  was  leasehold,  in  Mid- 
dlesex, and  the  assignment  registered.  The  assignee  files 
a  bill  for  foreclosm*e,  relying  upon  the  registiy  as  notice  to 
the  defendant ;  but  it  was  decreed  that  he  might  redeem  on 
payment  of  the  balance,  after  deducting  the  sums  paid  the 
mortgagee,  (v) 

1  Williams  v.  Sorrell,  4  Ves.  Jun.  389  ;  ace.  4  Ves.  118  ;  Coote,  441. 


(v)  It  -was  formerly  held  in  New  York,  that  a  mortgagor  may  make  a 
valid  payment  of  the  mortgage  debt  to  the  mortgagee,  notwitlistanding  tlie 
registration  of  an  assignment  of  the  mortgage,  unless  lie  have  actual  notice  ; 
such  registration  being  legal  notice  only  to  those  claiming  under  a  subse- 
quent transfer  from  the  mortgagee  or  his  representatives.  New  York  Life, 
&c.  V.  Smith,  2  Barb.  Ch.  82 ;  2  Cow.  246.  But,  under  the  Revised  Stat- 
utes, the  registration  of  an  assignment  is  constructive  notice  of  it.  Vander- 
kemp  V.  Shelton,  11  Paige,  28.  In  Williams  v.  Birbeck,  1  Hoffm.  Ch.  359, 
it  was  held  that  no  one  is  chargeable  with  constructive  notice  of  an  instru- 
ment from  its  being  recorded,  unless  the  law  requires  registration.  Ace. 
Button  V.  Ives,  5  Mich.  515.  In  Roberts  v.  Jackson,  11  Wend.  485,  Sav- 
age, C.  J.,  says  :  "  The  recording  of  an  assignment  of  a  mortgage  is  not 
necessary  to  its  validity ;  but  that  it  may  be  recorded,  and  its  execution 
proved,  in  the  same  way  as  a  mortgage.  In  Williams  v.  Birbeck,  1  HoiFm. 
Ch.  359,  the  opinion  is  expressed,  that  since  the  Revised  Statutes,  an  assign- 
ment of  a  mortgage  must  be  recorded,  to  protect  the  assignee  against  a  sub- 
sequent assignment  without  notice.  In  a  late  case,  it  is  held  that  registration 
of  an  assignment  is  notice  to  all  the  world  except  the  mortgagor  and  his 
representatives.     Ely  v.  Schofield,  35  Barb.  330. 

It  has  been  held  in  Pennsylvania,  that  the  assignment  of  a  mortgage  need 
not  be  recorded.  Mott  v.  Clark,  9  Barr,  399.  (See  Craft  v.  Webster,  4 
Rawle,  265  ;  Porter  v.  Seabor,  2  Root,  146.)  By  Stat.  1849,  (p.  527,)  as- 
signments may  be  recorded,  and  the  record  will  be  evidence.  In  the  same 
State,  the  certified  copy  of  the  assignment  of  a  mortgage  is  evidence.  Philips 
V.  Bank,  &c.  18  Penn.  394.  In  Wisconsin,  (Rev.  Sts.  329,)  registration  is 
not  notice ;  but  the  mortgagor  may  make  payment  to  the  mortgagee.  See 
Clark  V.  Jenkins,  5  Pick.  280;  Pierce  v.  Odiin,  27  JNIaine,  341. 

In  Texas,  under  the  statute,  an  assignment  of  a  mortgage  should  be  re- 
corded, as  an  agreement  relating  to  land.  Henderson  v.  Pilgrim,  22  Tex. 
49* 


582  THE   LAW    OF   MORTGAGES.  [CH.   XVIII. 

84.  An  assignee  takes  subject  to  the  equities  of  the  mort- 
gagor, but  not  to  latent  equities  of  his  cestuis  que  trust  or 
other  persons.  Thus  a  trustee  under  a  secret  trust  conveyed 
to  his  cestui,  and  then  mortgaged  to  one  having  notice  of 
such  conveyance.  The  mortgagee  assigned  to  one  not  hav- 
ing notice,  who  re-assigned  to  another,  the  assignment  not 
being  recorded.  After  the  first  and  before  the  second  assign- 
ment, the  conveyance  to  the  cestui  was  recorded.  Held,  the 
assignee  was  not  affected  by  this  registry,  nor  by  notice  to 
the  mortgagee  of  the  trust  and  conveyance.^  But,  on  the 
other  hand,  it  is  held  that  the  assignee  does  not  succeed  in 
all  cases  to  the  benefits  of  a  trust  of  which  the  mortgagee 
might  avail  himself.  Thus  a  mamed  woman  purchased 
land,  taking  a  deed  tq  herself,  and  giving  a  note  and  mort- 
gage to  A.,  who  advanced  part  of  the  purchase-money.  The 
securities  being  assigned  to  the  plaintiff,  he  brings  a  bill  in 
equity,  alleging  that  the  loan  was  procured  by  the  fraud  of 
the  mortgagor.  Held,  if  a  trust  thereby  resulted  to  A.,  no 
such  trust  passed  to  the  plaintiff.^ 

85.  The  title  of  an  assignee  may  be  impeached  by  evi- 
dence of  any  fraud  on  his  part,  or  to  which  he  is  privy. 
Thus,  if  a  mortgage  is,  on  its  face,  fraudulent,  an  assignee, 
though  he  take  it  in  good  faith,  stands  in  no  better  condition 
than  the  mortgagee."^  So,  where  assignment  of  a  bond  and 
mortgage  was  obtained  by  false  pretences,  which  constituted 
a  fraud  and  felony  ;  and  the  assignee  transferred  them  for  less 
than  their  value,  and  under  circumstances  calculated  to  put 
the  second  purchaser  on  inquiry :  held,  the  latter  gained  no 

1  Mott  V.  Clark,  9  Barr,  399.  ^  Farmers'  Bank,  &c.  v.  Douglass, 

2  Eaton  V.  George,  42  N.  H.  375.  11  S.  &  M.  469. 

464.  If  it  be  not  recorded,  a  bona  fide  purchaser  from  the  mortgagor,  who 
at  the  same  time  receives  a  release  and  discharge  from  the  mortgagee,  holds 
clear  of  the  mortgage,  notwithstanding  a  previous  assignment  of  which  he 
has  no  notice.  lb.  In  the  same  State,  the  assignee  of  a  debt  and  mortgage, 
by  an  assignment  not  under  seal,  has  but  an  equitable  estate,  and  therefore 
cannot  be  preferred  to  a  releasee  of  the  mortgagee  without  notice,  and  for  a 
valuable  consideration.     lb. 


CH.  XVIII.]  ASSIGNMENT.  583 

title  to  the  securities,  and  it  was  decreed  that  the  assignments 
were  fraudulent  and  void  as  against  the  original  holder,  and 
that  the  second  purchaser  should  re-assign  the  bond  and 
mortgage,  and  refund  the  amount  collected  by  him,  with 
interest.!  ji^i^^  an  assignee  may  be  affected  by  the  unfair 
dealing  of  the  mortgagee,  even  though  subsequent  to  the 
assignment,  and  though  the  former  is  no  direct  party  to  it. 
Thus  a  mortgage  was  given,  conditioned  for  the  payment  of 
$800  in  five  years,  with  interest  annually ;  the  whole  debt  to 
become  due  upon  failure  to  pay  interest  when  payable.  The 
mortgagee,  having  assigned  the  mortgage,  and  guaranteed 
its  payment,  shortly  before  an  instalment  of  interest  fell  due, 
informed  the  mortgagor  of  the  assignment,  but  not  of  the 
assignee's  residence,  and  the  mortgagor,  unable  to  find  the 
assignee,  made  a  tender  to  the  mortgagee,  who  refused  it. 
Upon  a  bill  to  foreclose,  brought  by  the  assignee,  held,  the 
tender  was  sufficient  to  prevent  a  forfeiture,  or  at  least  to 
justify  a  stay  of  proceedings,  upon  payment  of  the  sum  due, 
till  further  default ;  the  facts  showing  a  design  on  the  part 
of  the  mortgagee  and  assignee  to  take  an  unconscientious 
advantage  of  the  mortgagor,  and  that  he  was  prevented  from 
paying  at  the  time  appointed  through  their  act  and  not  his 
own  default.^ 

86.  Under  some  circumstances,  the  mortgagee  may  have 
no  right  to  assign  the  mortgage.  But,  in  order  to  affect  an 
assignee's  title,  the  notice  of  such  want  of  authority  must  be 
clear  and  explicit.  Thus,  a  bond  and  mortgage  were  made 
by  a  corporation  to  one  of  its  directors,  to  enable  him  to 
raise  money  for  the  corporation  by  assigning  them,  and  on 
his  representation  that  he  could  not  raise  the  money  upon 
securities  running  directly  to  the  lender.  The  director  nego- 
tiated the  securities  for  his  own  purposes,  taking  from  the 
assignee  real  estate  therefor.  Pending  the  negotiation,  the 
assignor  exhibited  to  the  assignee  certain  certificates,  signed 
by  officers  of  the  company,  stating  that  the  securities  were 
binding  upon  the  company,  and  that  the   amount  thereof 

1  Peabody  v.  Fenton,  3  Barb.  Ch.  451.         ^  Noyes  v.  Clark,  7  Taigc,  179. 


584  THE   LAW    OF   MORTGAGES.  [CH.  XVIII. 

was  due  the  director,  but,  before  the  bargaiu  was  closed,  the 
president  told  the  assignee,  that  the  company  were  anxious 
to  procure  the  money  and  have  the  works  in  operation,  and 
would  be  able  to  do  it  if  they  could  get  the  money.  Held, 
the  mortgage  might  be  enforced  by  the  assignee  against  the 
company.^ 

87.  How  far  notice  of  an  outstanding  title  shall  affect  one 
claiming  under  the  party  who  has  such  notice,  is  a  question 
which  has  arisen  in  England  in  various  forms.  Thus  it  has 
been  held,  that,  if  one  take  a  mortgage  by  assignment  from 
a  mortgagee  having  such  notice,  he  will  take  subject  to  the 
adverse  title  ;  that  the  assignor  cannot  transfer  a  better  title 
than  he  has  himself.  Tliis  principle,  however,  has  been  ques- 
tioned. A  similar  question  has  been  raised,  as  to  the  right 
of  a  third  mortgagee,  taking  an  assignment  of  the  first  mort- 
gage, to  tack  it  to  his  own,  where  the  assignor  had  notice  of 
the  second  mortgage.  The  better  opinion  would  seem  to  be 
that  tacking  would  be  allowed,  notwithstanding  such  notice.'' 

88.  The  rights  of  an  assignee  in  relation  to  foreclosure  may 
depend  upon  similar  considerations  of  notice  and  implied 
fraud.  Thus  it  is  held,  that  a  mortgage  may  be  assigned 
after  entry  for  the  purpose  of  foreclosure,  and  the  assignment 
will  not  necessarily  affect  such  foreclosure.  But  if  made  in 
order  to  prevent  a  redemption,  or  immediately  before  the 
right  of  redemption  would  expire,  it  may  keep  the  right  of 
redemption  alive,  until  a  tender  can  be  made  to  the  assignee, 
being  regarded  in  the  former  case  as  a  fraud,  of  which  the 
party  shall  not  himself  take  advantage,  and  in  the  latter, 
as  analogous  to  the  case  of  payment,  made  to  a  mortgagee 
after  assignment,  but  before  notice  of  it.^  {lo) 

1  Van  Hook  v.    Somerville,  &c.,  1        ^  Coote,  433. 
Halst.  Ch.  633.  ^  Deming  v.  Comings,  UN.  II.  474. 

(w)  While  an  assignee  is  in  general  subject  to  all  equities  between  tBe 
original  parties,  on  the  other  hand,  he  succeeds  to  the  personal  rights  of  the 
mortgagee.  Thus  a  succession  sale,  in  Louisiana,  which  by  the  charter  of  a 
bank,  the  mortgagee,  is  invalid  against  the  bank,  is  also  invalid  against  its 
assignee.    Beatty  v.  Clement,  12  La.  An.  82. 


CH.  XTX.]      VOID   AND    VOIDABLE   MORTGAGES.  —  USURT.  585 


CHAPTER   XIX. 

VOID    AND    VOIDABLE    MORTGAGES. USURY. 

1.  General  principle  as  to  avoiding  i  foreclosure,  and  a  bill  to  redeem,  in 
deeds.  relation  to  usury. 

2.  Usury.  83.  What  parties  may  be  affected  by 
4.  What  constitutes  usury  in  amort-  ;  usury  in  a  mortgage. 

gage.  j      36.  Wliat  parties  may  avail   them- 

12.  What  does  not  constitute  usury,  j  selves  of  sucli  usury. 

22.  Statement  of  questions  arising  in  I      40.  Wiiat  will  preclude  a  mortgagor 

relation  to  usurious  mortgages.  j  from  setting  up  usury  ;  effect  of  a  prior 

2-5.  When  the  sum  legally  due  may  :  judgment,  &c. 

be  recovered.  |      41.  Form  of  pleading  usury. 

26.  Distinction   between   a  bill   for'      44.  Evidence — parol  evidence. 

1.  In  many  respects,  a  mortgage  is  not  distinguishable, 
with  reference  to  the  circumstances  which  render  it  void  or 
voidable,  from  an  absolute  deed.  Of  course,  however,  this  is 
not  universally  true.  A  mortgage,  though  in  form  a  convey- 
ance of  land,  is  for  many  purposes  a  mere  executory  contract, 
like  the  personal  obligation  which  it  accompanies,  and  there- 
fore admits  of  many  defences  or  exceptions  which  cannot  be 
applied  to  absolute,  executed  conveyances.  And  the  general 
rule  is  laid  down,  that,  with  the  exception  of  limitation  or 
bankruptcy,  the  same  defences  may  be  made  to  a  suit  upon  a 
mortgage,  as  upon  the  note  which  it  is  made  to  secure.^  {a) 

2.  One  of  the  common  defences  to  a  mortgage  is  usury, 
which  cannot  exist  in  connection  with  an  absolute  sale  of 
land  for  a  certain  price,  however  excessive,  but  is  a  natural 
incident  to  conditional  conveyances,  made  as  security  for 
loans  of  money. 

3.  If  usury  is  set  up  against  a  bill  for  foreclosure,  strict 
proof  is  required.'-^ 

1  Bush   V.    Cooper,   26  Miss.   599  ;        ^  Richards  v.  Wortliley,  5  Wis.  73. 
Vinton  v.  liing,  4  Allen,  564. 


(a)  A  mortgage  may  be  void  only  in  part,  as  where  a  homestead  is  in- 
cluded with  other  property.    M'Murray  v.  Connor,  2  Allen,  205. 


586  THE   LAW    OF   MORTGAGES.  [CH.  XIX. 

4.  In  regard  to  the  question,  what  constitutes  usury,  there 
is  no  substantial  difference  between  mortgages  and  other 
obligations  or  securities.  It  would  be  foreign  from  the  plan 
of  the  present  work,  to  go  minutely  into  all  the  distinctions 
upon  the  subject.  Some  of  the  decisions  relating  particu- 
larly to  mortgages  are  here  subjoined.  In  many  of  the  States, 
by  virtue  ,of  express  statutes,  usury  no  longer  renders  any 
securities  absolutely  void,  but  merely  involves  certain  forfeit- 
ures of  a  portion  of  the  amount  promised.  Of  course  those 
alterations  of  the  law  apply  as  well  to  mortgages  as  to  other 
obligations,  [b) 

5.  Action  on  a  promissory  note.  Defence,  that  the  plain- 
tiff loaned  to  the  defendant  $800,  and  received  as  security  an 
absolute  deed  of  a  piece  of  land  of  much  greater  value,  with 
an  agreement  that  the  defendant  might  redeem  it  by  repay- 
ment of  the  loan  with  12  per  cent,  interest,  and  should  remain 
in  possession  of  the  land  and  pay  therefor  $48  per  annum, 
being  the  simple  interest,  as  rent,  for  which  rent  the  note 
was  given.  Held,  the  transaction  was  usurious  and  the  note 
void.^  So  one  person,  through  an  agent,  applied  to  another 
for  a  loan,  at  15  per  cent,  interest,  to  be  secured  by  mortgage. 
The  party  applied  to  declined  taking  a  mortgage,  but  pro- 
posed to  purchase  the  property  for  the  sum  named,  and  let  it 
to  the  other  for  a  rent  equivalent  to  such  interest,  with  the 
privilege  of  redeeming  by  payment  of  the  sum  advanced,  and 
of  the  rent.  The  proposition  was  accepted,  a  deed  made, 
and  a  lease  taken  back,  in  the  terms  above  stated.  Held,  it 
was  a  question  for  the  jury,  whether  the  transaction  was  a 
real  sale,  or  only  designed  to  cover  a  usurious  loan.^  So 
a  mortgage  made  to  the  indorsee  of  a  usurious  note,  to  se- 

1  MitcheU  v.  Preston,  5  Day,  100.  2  Tyson  v.  Rickard,  3  Har.  &  J.  109. 


(i)  See  Vickery  v.  Dickson,  35  Barb.  96  ;  Melville  v.  American,  &c.,  33 
Barb.  103;  Baxter  v.  M-Intire,  13  Gray,  168;  Lockwood  v.  Mitchell,  7 
Ohio,  N.  S.  387.  As  to  the  (juestion  of  usury  in  the  assignment  of  a  mort- 
gage, see  Mumford  v.  American,  &c.,  4  Comst.  463;  U.  States  Dig.  1852, 
"  Usury." 


CH.  XIX.]     VOID    AND    VOIDABLE   MORTGAGES.  —  USURY.  587 

cure  it,  is  void,  though  he  had  no  notice  of  the  usury  at  the 
time  of  indorsement ;  especially  if  at  the  making  of  the  mort- 
gage he  had  such  notice.^  So,  to  a  bill  to  foreclose  a  mort- 
gage, which  was  made  as  security  for  a  bond  of  $5,000  and 
interest,  the  defendant  answered,  that  he  received  from  the 
plaintiff,  for  the  bond  and  mortgage,  two  checks  for  $4,6-58, 
payable  in  six  months,  without  interest,  his  own  note  for 
$341.10  principal  and  interest,  and  ninety  cents  in  cash;  all 
of  which  allegations,  except  the  last,  were  proved.  Held,  the 
answer  was  substantially  established,  and  the  transaction 
usurious. 2  So,  where  the  holder  of  a  usurious  mortgage  in- 
dorsed upon  it  an  amount  equal  to  the  sum  included  in  it 
for  usury,  with  the  assent  of  the  mortgagor ;  held,  the  mort- 
gage was  void,  notwithstanding  such  indorsement.^ 

6.  It  has  been  held,  that  an  agreement  to  set  the  profits  of 
the  estate  against  the  interest  of  the  loan  is  usurious,  if  such 
profits  exceed  the  legal  rate  of  interest.*  So,  where  a  mort- 
gage was  given  to  secure  the  loan  of  $3,000,  without  any 
agreement  about  interest ;  and  the  mortgagee  let  the  prem- 
ises to  the  mortgagor  at  the  annual  rent  of  $270 :  held,  an 
agreement  for  usurious  interest.^  (c)  So,  where  land  was 
conveyed  for  a  consideration  much  less  than  its  value,  and 
to  be  reconveyed  upon  payment  of  the  money  loaned,  with 
usurious  interest ;  this  was  held  a  security  for  the  payment 
of  money,  with  usurious  interest,  and  not  an  actual  pay- 
ment ;  and  hence  the  statutory  penalty  was  not  incurred.^ 

7.  In  New  York,  a  statute  provided,  that  all  bonds,  &c., 
whereupon  or  whereby  there  shall  be  reserved,  &c.,  or  se- 
cured over  7  per  cent.,  should  be  utterly  void.    Held,  a  mort- 

1  Morgan  v.  Tipton,  3  McL.  339.         *  Robertson  v.  Campbell,  2  Call,  354. 

2  Lane  v.  Losee,  2  Barb.  56.  ^  Gordon  v.  Hobart,  2  Story,  243. 

3  Miller  v.  Hull,  4  Denio,  104.  ^  Thomes  v.  Cleaves,  7  Mass.  361. 


(c)  The  only  relief  to  which  a  mortgagor,  in  such  case,  is  entitled,  is  to 

■  have  the  rate  of  interest  cut  down  to  the  legal  rate ;  and  the  assignee  of  tlie 

mortgagor  is  not  entitled  to  be  placed  in  a  better  situation,  if  lie  is  entitled 

to  any  relief;  which  is  held  to  be  doubtful.     Gordon  v.  Hobart,  2  Story, 

243. 


588  THE   LAW   OF  MORTGAGES.  [CH.   XIX. 

gage  taken  on  a  loan  of  money,  including  a  former  usurious 
loan,  was  void,  the  usury  destroying  the  whole  security  ;  and 
that  an  action  of  ejectment  could  not  be  maintained  for  the 
land  by  an  assignee  of  the  mortgage.^  • 

8.  Stats.  2  and  3  Vict.  c.  37,  §  1,  enabled  parties  to  con- 
tract for  more  than  5  per  cent.,  where  the  sum  lent  or  for- 
borne was  over  XIO,  but  with  a  proviso  that  it  should  not 
apply  to  the  loan,  &c.,  of  money  upon  security  of  any  lands, 
tenements,  &c.  In  Hodgkinson  v.  Wyatt,^  this  proviso  was 
held  applicable  to  a  case,  where  the  security  consisted  in 
an  equitable  mortgage  by  deposit  of  title-deeds  to  leasehold 
property. 

9.  In  Bush  V.  Livingston,'^  a  bond  and  mortgage  were 
given  for  $6,000,  and  assigned  by  the  mortgagee,  by  the 
procurement  of  the  mortgagor,  nominally  for  the  whole  sum, 
and  under  an  agreement  that  they  were  to  be  available  to 
the  assignee  for  the  $6,000  and  interest,  but  upon  which  he 
had  paid  only  $5,600,  the  remaining  $400  being  intended  as 
a  bonus  for  advancing  the  money.  The  assignee  filed  his 
bin  of  foreclosure  against  the  mortgagor  and  his  assignee 
in  bankruptcy,  and  the  answer  set  up  usury  as  a  defence. 
Held,  the  mortgage  was  valid  in  the  hands  of  the  plaintiff  to 
the  extent  of  $5,600  and  lawful  interest ;  and  his  recovery 
upon  it  was  restricted  accordingly,  the  transaction  being  a 
hard  and  unconscionable  advantage  taken  by  the  lender  of 
the  mortgagor. 

10.  Bill  in  equity  to  foreclose  a  mortgage,  conditioned 
that  the  mortgagor  should  pay  the  mortgagee,  the  plaintiff, 
the  interest  of  8  per  cent,  upon  $1,000  of  eight  per  cent.' 
stock  loaned  by  the  plaintiff  to  the  defendant,  and  should 
further  pay  him  said  sum  of  $1,000.  Plea,  the  statute  of 
usury,  alleging  that  it  was  a  loan  of  money  and  not  of  stock. 
It  appeared  in  evidence,  that  the  plaintiff  authorized  another 
person  to  sell  $1,000  of  eight  per  cent,  stock,  which  he  did 
through    the    agency  of   the   defendant,  who    received   the 

1  Jackson  v.  Packard,  0  Wend.  415.  ^  2  Caines'  Cas.  in  Err.  66. 

2  4  Ad.  &  Ell.  (N.  S.)  749. 


CH.    XIX.]      VOID    AND    VOIDABLE    MORTGAGES. —  USUllY.  589 

money.  The  plaintiff  having  endeavored  without  succesB 
to  get  from  the  defendant  either  the  stock  or  money,  it  was 
finally  agreed  that  the  defendant  should  be  considered  re- 
sponsible for  the  stock,  and  give  a  mortgage  to  secure  repay- 
ment of  it  and  8  per  cent,  interest.  Held,  the  contract  was 
usurious,  and  the  mortgage  void.^ 

11.  A  bank  may  take  a  mortgage  for  a  debt  due,  with  7 
per  cent,  interest,  (that  being  the  legal  rate,)  notwithstand- 
ing it  is  prohibited  by  its  charter  from  taking  "more  than  6 
per  cent,  per  annum,  in  advance,  on  its  loans  or  discounts." ^ 

12.  A  mortgage  made  in  Connecticut  for  7  per  cent,  inter- 
est, to  indemnify  the  mortgagee  against  an  obligation  given 
in  New  York  for  7  per  cent.,  is  not  usurious.^  So,  where  A. 
made  a  mortgage  of  lands  in  Connecticut,  where  he  resided, 
to  B.,  as  security  for  a  bond  to  him,  and  subsequently  C. 
paid  the  bond,  and  took  an  assignment  of  the  mortgage ; 
held,  A.  could  not  redeem,  without  paying  to  C.  the  sum  ac- 
tually advanced  by  him,  and  7  per  cent,  interest,  being  the 
legal  interest  of  the  State  in  which  the  land  lay  and  the 
mortgagor  resided.*  So,  where  notes  were  made  in  Mas- 
sachusetts, but  purported  to  be  made  in  Illinois,  and  were 
secured  by  mortgage  of  land  in  Illinois;  and  to  a  scire  facias 
brought  for  foreclosure,  the  defendant  set  up  as  a  defence 
usury  under  the  laws  of  Massachusetts  :  held,  the  forfeiture 
provided  by  those  laws  affected  the  remedy  only,  and  could 
not  be  enforced  in  Illinois.^  So,  where  A.,  living  in  New 
York,  sold  to  B.,  also  living  in  New  York,  a  tract  of  land  in 
New  Jersey,  and  took  his  bond  for  part  of  the  consideration 
money,  with  7  per  cent,  interest,  (the  legal  rate  in  New  York,) 
and  his  mortgage  on  the  lands  conveyed,  to  secure  the  bond  ; 
held,  the  mortgage  was  not  usurious,  though  the  papers  were 
exchanged  in  New  Jersey  at  the  proper  record  office,  they 
having  been  executed  and  acknowledged  in  New  York,  and 

-      1  DeButts  V.  Bacon,  6  Cranch,  252.         *  Mallory  v.  Aspinwall,  2  Day,  280. 

2  Bailey  v.  Murphy,  Walk.  Ch.  424.         ^  Sherman  v.  Gassett,  4  Gilni.  521. 

3  Nichols  V.  Cosset,  1  Boot,  294.  . 

VOL.  I.  50 


li 


590  THE   LAW   OF   MORTGAGES.  [CH.    XIX. 

a  sufficient  reason   being  shown  for  not  exchanging  them 
there.^ 

13.  Mortgage,  to  secure  a  certain  sum  of  money  at  a  cer- 
tain time,  with  legal  interest,  and  an  agreement  that,  if  the 
principal  and  interest  should  not  be  punctually  paid,  the  land 
should  be  sold  to  pay  the  same,  with  five  per  cent,  damages 
thereon  and  all  costs.     Held,  the  contract  was  not  usurious.^ 

14.  In  a  negotiation  for  the  sale  of  land,  the  seller  was 
willing  to  take  $10,000  in  cash,  but,  the  person  proposing  to 
buy  being  unable  to  pay  cash,  it  was  agreed  that  a  deed,  and 
a  bond  and  mortgage  for  $12,000,  payable  at  a  future  time 
wath  interest,  should  be  executed,  to  remain  in  the  seller's 
hands,  until  he  could  negotiate  a  sale  of  the  bond  and  mort- 
gage, for  a  sum  equal  to  the  price  he  asked  in  cash  for  the 
land,  and  the  deed  then  to  be  delivered.  The  papers  were 
executed  accordingly,  the  bond  and  mortgage  afterwards 
sold  for  $10,000  cash,  and  the  deed  delivered  at  the  same 
time.  Held,  this  transaction  was  not  usurious,  and  the  bond 
and  mortgage  were  a  valid  security  for  the  sum  of  $12,000. 
Such  a  transaction,  it  seems,  does  not  differ  from  the  ordi- 
nary case  of  asking  one  price  in  cash  for  the  property,  and  a 
higher  price  on  credit,  with  the  further  condition,  that  the 
sale  is  not  to  be  effected,  until  the  security  taken  for  the 
credit  price  can  be  sold  for  a  sum  of  money  equal  to  the 
cash  price.^ 

15.  Mortgage,  payable  in  small  annual  instalments,  which 
were  not  due.  The  mortgagor  advanced  $1,400  to  the  mort- 
gagee upon  the  application  of  the  latter,  under  an  agi'eement 
that  he  would  apply  and  indorse  $2,100  as  a  payment  on 
the  mortgage.  Held,  this  was  not  a  loan  nor  forbearance, 
and  therefore  not  usurious  ;  and  that  the  agreement  was  for 
good  consideration  and  not  unconscionable.* 

16.  A  mortgage  on  a  loan  of  $700,  to  be  paid  in  ten 
years,  with  interest  at  the  end  of  that  time,  is  not  usurious, 

^  Blydenburgh  v.  Cotheal,  1  Halst.        ^  Brooks  v.  Averj',  4  Comst.  225. 
Ch.  631.  .4  Righter  v.  Stall,  3  Sandf.  Ch.  608. 

•^  Gambril  v.  Rose,  8  Blackf.  140. 


CH.   XIX.]      VOID    AND    VOIDABLE   MORTGAGES. —  USURY.  591 

though  in  addition  to  the  interest  the  mortgagee  is  to  have, 
free  of  rent,  the  use  of  an  acre  of  the  land,  worth  $8  per 
year.^ 

17.  The  purchaser  at  a  master's  sale  procured  the  con- 
veyance to  be  made  to  trustees,  to  secure  the  payment  to 
a  third  person  of  a  loan  alleged  to  be  usurious.  The  pur- 
chaser and  the  trustees  subsequently  sold  the  premises,  and 
took  back  a  mortgage  for  part  of  the  price,  for  the  benefit  of 
the  lender,  to  secure  the  loan.  Held,  though  the  loan  were 
usurious,  the  bond  and  mortgage  were  still  valid.^ 

18.  One  holding  a  mortgage  of  a  large  tract,  payable  at  a 
distant  day,  with  6  per  cent,  interest,  at  the  request  of  the 
mortgagor  took  from  him  thirteen  distinct  mortgages  on  sep- 
arate portions,  for  the  same  amount  in  the  whole,  with  7  per 
cent,  interest,  payable  at  the  same  time,  thereupon  cancelling 
the  old  mortgage,  and  receiving  from  the  mortgagor  $500  for 
granting  the  accommodation.  Held,  as  there  was  no  loan  or 
forbearance,  the  transaction  was  not  usurious.^ 

19.  A.,  having  made  a  deed  of  trust  to  secure  a  debt,  un- 
der which  a  sale  of  the  land  was  advertised,  agreed  with  B., 
that  B.  should  bid  the  amount  of  the  debt,  and,  if  he  became 
the  purchaser,  that  B.  should  resell  the  land  to  A.,  on  his  pay- 
ing, within  twelve  months,  a  sum  afterwards  to  be  agreed 
upon,  it  being  understood  that  the  sum  should  be  sufficient 
to  fully  reimburse  B.,  including  his  trouble  and  expenses.  B. 
became  the  purchaser.  Held,  the  transaction  was  not  usuri- 
ous, and  the  estate  became  absolute  in  B.,  on  A.'s  failure  to 
pay  within  twelve  months,  and  the  sum  not  being  fixed  with- 
in that  time.* 

20.  A.  mortgaged  certain  hereditaments  to  B.  for  X7,500, 
and  his  equity  of  redemption  to  C.  for  X5,000.  D.  afterwards 
agreed  to  take  a  transfer  of  both  mortgages,  and  to  advance 
a  sum  of  £12,000  for  that  purpose,  at  interest  at  £5  per 
cent,  reducible  on  prompt  payment  to  X4  per  cent.     The 

1  Fox  V.  Lipe,  2t  Wend.  IGi.  ^  Neefus   i'.  Vanderveer,   3   Saiidf. 

'-^  Stoney  u.  American,  &c.  11  Paige,     Cli.  268.  ,   ^  ^  „   n,, 

635.  «  Jones  v.  Hubbard,  G  Call,  211. 


592  THE   LAW   OF   MORTGAGES.  [CH.   XIX. 

transfer  of  the  first  mortgage  not  being  ready  to  be  executed, 
through  the  default  of  A.,  at  the  time  appointed,  D.  advanced 
the  <£5,000  at  once,  and  took  a  transfer  of  the  second  mort- 
gage ;  at  the  same  time  A.  signed  a  memorandum,  acknowl- 
edging that  the  remainder  of  the  money  was  ready,  (which 
was  the  case,)  and  agreeing  that  interest  on  the  first  mort- 
arase,  w^hen  transferred  to  D.,  should  run  as  from  the  date 
of  that  agreement,  and  that  the  deed  of  transfer  of  the  first 
mortgage  should  bear  date  on  that  day.  The  deed  of  trans- 
fer of  the  first  mortgage  was  not,  in  fact,  executed,  nor  the 
X7,500  paid  over  to  B.,  until  nearly  six  weeks  afterwards. 
Held,  the  transaction  was  nevertheless  good  under  the  stat- 
ute 12  Anne,  ch.  16,  against  usury. ^ 

21.  A  mortgage,  made  for  the  purpose  of  being  assigned 
upon  a  loan,  and  accordingly  assigned  for  a  loan  at  more 
than  legal  interest,  is  not  usurious  as  between  a  subsequent 
purchaser  and  the  mortgagor,  unless  the  former  knew  the 
purpose  for  which  it  was  made,  at  the  time  of  the  purchase.^ 
And  the  validity  of  a  mortgage  and  the  liability  of  a  mort- 
gagor are  not  affected  by  its  transfer  as  security  for  an  usu- 
rious loan.  Payment  of  such  loan  relieves  the  mortgage  of 
all  taint.3 

22.  In  addition  to  the  question,  what  constitutes  usury  in 
a  mortgage,  numerous  cases  have  arisen,  both  in  law  and 
equity,  involving  the  inquiries,  whether  a  mortgage  should 
be  avoided  for  usury,  only  as  against  a  mortgagee,  seeking 
to  enforce  it  by  foreclosure  or  otherwise,  or  in  favor,  also,  of 
the  mortgagor,  bringing  a  suit  to  redeem ;  what  parties  may 
avail  themselves  of  this  ground  of  avoidance ;  (d)  and  how 
far  the  original  defect  is  cured  by  legal  and  judicial  proceed- 
ings, treating  the  mortgage  as  a  valid  security. 

23.  In  Massachusetts,  it  has  been  heretofore  suggested  as 
a  doubtful  point,  whether,  in  a  bill  to  redeem,  the  plaintiff 

1  Long  V.  Storie,  10  Eng.  Law  &  Eq.    ^  Jackson  v,.  Golden,  4  Cow.  266. 
182.  3  Warner  v.  Gouverneur,  1  Barb.  36. 

(r/)   See  Strong  v.  Strickland,  32  Barb.  284. 


■N 


CH.    XIX.]     VOID    AND    VOIDABLE    MORTGAGES.  —  USURY.  593 

can  legally  seek  to  deduoi  penalties  for  usury  from  the 
amount  due  on^the  mortgage.^  A  late  case,  however,  de- 
cides that  this  may  be  done.'^  But,  in  a  suit  for  foreclosure, 
no  such  deduction  shall  be  made  on  the  ground  of  additional 
interest  paid  for  delay  to  take  possession  ;  no  contract  to 
that  effect  having  been  made  at  the  time  of  executing  the 
mortgage.^ 

24.  In  New  Hampshire,  in  a  writ  of  entry  upon  a  usurious 
mortgage,  the  defendant  may  claim  the  statutory,  triple  de- 
duction from  the  debt,  and  the  conditional  judgment  will  be 
for  the  balance  only  ;  though  the  declaration  does  not  show 
the  action  to  be  upon  a  mortgage.*     (See  §  41.) 

25.  In  Pennsylvania,  a  usurious  contract  is  not  absolutely 
void,  (e)  Hence  a  mortgagee,  in  such  case,  may  recover 
upon  scire  facias  the  amount  loaned,  with  legal  interest. 
The  Court  say  :  —  "It  would  be  unwarrantable  to  unsettle 
the  law,  merely  because  a  general  principle  has  lately  been 
established,  that  courts  of  justice  will  not  give  redress  on  any 
contract  which  has  been  made  contrary  to  law.  To  say  that 
this  contract  was  so  contrary  to  the  act  of  assembly,  as  to 
make  the  recovery  of  the  just  debt  and  interest  improper,  is 
begging  the  question,  and  directly  in  opposition  to  the  con- 
struction established  by  practice,  decision,  and  general  acqui- 
escence." ^ 

26.  In  New  York,  in  the  case  of  Fanning  v.  Dunham,'^  the 
distinction  was  taken,  that,  if  a  lender  of  money  on  a  usu- 
rious coritract  seeks  to  enforce  his  securities  in  a  court  of 
equity,  and  the  usury  is  set  up  as  a  defence,  the  securities 
will  be   declared  void,  and  ordered  to  be  delivered  up  and 

1  Eobinson  v.   Guild,  12  Met.  328.        *  Briggs  v.  Sholes,  14  N.  H.  262. 
See  Gordon  v.  Hobart,  2  Sumn.  402 ;         ^  Turner  v.  Calvert,  12  S.  &  R.  46, 
2  Story,  243;   Divoll  v.  Atwood,  41    47. 

N.  H.  443.  '^  5  John.  Cli.  122;  ace.  Ballmger  i-. 

2  Hart  i;.  Goldsmith,  1  Allen,  145.        Edwards,  4  hud.  Eq.  44'J ;  Woodard 

3  Drury  v.  Morse,  3  Allen,  445.  v.  Fitzpatrick,  9  Dana,  117. 


(e)  In  Indiana,  a  usurious  mortgage  is  valid  for  the  amount  of  the  prin- 
cipal debt.     Grimes  v.  Doe,  8  Blackf.  371, 
50* 


594  THE    LAW    OF    MORTGAGES.  [CH.  XIX. 

cancelled.  But  where  the  lendej:  has  recovered  a  judgment 
at  law  on  a  bond  and  warrant  of  attorney,  or  is  proceeding 
to  foreclose  a  mortgage  by  virtue  of  a  power  of  sale  under 
the  statute,  without  the  aid  of  a  court  of  equity  ;  vipon  a  bill 
for  relief  filed  by  the  borrower  against  the  judgment  or  other 
legal  securities,  on  the  ground  of  usury,  he  cannot  have  such 
relief  without  paying  or  offering  to  pay  the  sum  lawfully  due, 
whether  the  usury  be  established  by  proof,  or  admitted  in  the 
answer.  In  this  case,  Chancellor  Kent  goes  into  an  elaborate 
examination  of  the  authorities  upon  the  subject  of  vacating 
judgments  upon  the  ground  of  usury.  He  adds  :  ^  —  "  The 
same  objection  and  difficulty  occurs  in  the  case  of  a  mort- 
gage taken  to  secure  an  usurious  loan,  with  a  power  to  sell 
annexed  to  it,  by  means  of  which  the  creditor  forecloses  his 
mortgage  by  an  act  in  pais,  without  calling  upon  any  Court 
to  assist  him.  The  debtor  has  no  relief  in  that  case,  but  by 
applying  to  this  Court,  and  then  he  must  comply  with  the 
terms  of  paying  what  was  actually  advanced.  He  deprives 
himself,  in  that  case,  by  the  power  to  sell,  as  he  does  in  the 
other  by  his  warrant  of  attorney  to  confess  judgment,  of 
an  opportunity  \o  appear  in  the  character  of  defendant  and 
plead  the  usury.  These  are  cases  in  which  the  party  by  his 
own  voluntary  act  deprives  himself  of  his  ability  to  inflict 
upon  the  creditor  the  loss  of  his  entire  debt.  The  party  is  in 
the  same  situation,  if  instead  of  resisting  the  usurious  claim, 
he  pays  it.  He  cannot  then  expect  assistance  to  recover 
back  more  than  the  usurious  excess.  If  the  warrant  of  attor- 
ney or  the  power  to  sell  were  procured  by  fraud,  or  surprise, 
or  accident,  that  would  form  a  distinct  head  of  relief,  and  is 
nowise  applicable  to  the  case.  And  perhaps  it  is  sufficient 
for  the  purposes  of  public  justice  and  public  policy,  that  the 
law  has  enabled  a  debtor,  in  every  case  in  which  he  does  not 
of  his  own  accord  deprive  himself  of  the  means,  to  plead  the 
statute  in  discharge  of  his  usurious  contract,  and  of  his  obli- 
gation to  pay  even  what  was  received,  and  that  in  all  cases 

'  5  John.  Cli.  145  ;  ace.  Ballinger  v.  Edwards,  4  Ircd.  Eq.  449. 


CH.   XTX.]    VOID    AND    VOIDABLE   MORTGAGES. —  USURY.  596 

he  can,  by  paying  the  actual  principal  received,  and  the  law- 
ful interest,  be  relieved  from  the  usurious  exaction." 

27.  In  the  same  State,  a  bond  and  mortgage  were  given 
for  $10,000.  The  mortgagees  pressed  a  foreclosure,  and  had 
obtained  a  decree.  The  mortgagor  procured  from  a  third 
person  an  advance  of  $8,000,  and  himself  paid  the  balance 
to  the  mortgagees.  The  bond,  mortgage,  and  decree,  were 
assigned  by  the  mortgagees  to  the  person  advancing  the 
money,  who  afterwards  pressed  a  sale  under  the  decree  for 
the  whole  $10,000  and  interest.  Upon  an  order  on  him  in 
favor  of  an  assignee  of  the  mortgagor,  to  show  cause  why 
an  injunction  should  not  issue,  and  the  sale  be  stayed  ;  the 
order  was  made  absolute  for  an  injunction,  unless  the  de- 
fendant would  stipulate  to  accept  the  $8,000  with  interest ; 
upon  non-payment  of  which  the  sale  should  proceed.^ 

28.  In  North  Carolina,  a  mortgagor  who  has  not  paid  the 
amount  of  the  loan  admitted  to  be  due,  nor  brought  it  into 
court,  cannot  enjoin  the  mortgagee  from  collecting  the  debt 
or  bringing  ejectment  for  the  land,  although  the  mortgagor 
alleges  that  the  contract  was  usurious.  Thus  the  plaintiff 
borrowed  from  the  defendant  $1,000,  for  which  he  was  to 
pay  10  per  cent,  annually,  by  way  of  interest,  and,  to  cover 
the  usury,  the  title  to  certain  lands,  which  the  plaintiff  had 
bought,  but  not  paid  for,  was  conveyed  to  the  defendant;  and 
the  parties  entered  into  a  covenant,  that  the  plaintiff  should 
lease  the  land,  from  year  to  year,  so  long  as  he  saw  proper, 
at  the  annual  rent  of  $100,  and  was  to  have  the  fee-simple, 
whenever  he  paid  the  $1,000,  together  with  the  rent.  The 
plaintiff  paid  the  agreed  sum  for  several  years,  when  he  failed 
to  pay,  and  the  defendant  brought  a  suit,  and  recovered  judg- 
ment for  $233  rent;  and  also  an  action  of  ejectment,  in 
which  he  recovered  judgment;  and  was  about  to  sue  out 
execution  upon  both  judgments.  The  plaintiff  brings  a  bill 
in  equity  for  an  account,  and  a  conveyance  in  fee  upon  pay- 
ment of  $1,000,  and  6  per  cent,  interest,  deducting  the  sums 
already  paid  ;  and  for  an  injunction  against  both  said  execu- 

1  Pearsall  v.  Kingsland,  3  Edw.  195. 


596  THE    LAW    OF   MORTGAGES.  [CH.   XIX. 

tions.  Held,  as  the  plaintiff  was  in  arrear  some  six  or  seven 
hundred  dollars,  after  allowing  all  credits,  the  bill  could  not 
be  maintained.^ 

29.  In  Vermont,  payments  made  on  a  usurious  contract, 
to  an  amount  within  that  of  the  ^ebt  and  legal  interest,  will 
be  treated  in  equity  as  payments  generally,  and,  in  the  case 
of  a  bill  to  foreclose  a  mortgage,  may  be  insisted  on  by  way 
of  answer.^ 

30.  In  Maryland,  where  a  party  goes  into  a  court  of  equity 
to  ask  relief  against  a  usurious  mortgage  or  contract,  he  must 
do  equity  by  paying  or  offering  to  pay  the  principal  sum  with 
legal  interest.^  And  where  the  creditor  is  compelled  by  the 
Court  to  file  his  mortgage  before  it  is  due,  and  placed  in  liis 
present  position  by  act  of  law,  he  cannot  be  regarded  as  the 
actor ;  but  the  subsequent  mortgagees,  who  interpose  the 
plea  of  usury,  and  demand  relief  against  him  on  this  ground, 
are  the  actors,  and  their  case  is  fully  within  the  spirit,  if  not 
the  letter,  of  the  rule,  that  requires  equity  first  from  them.'* 

31.  In  Kentucky,  it  is  competent  for  a  mortgagor,  of  whom 
usury  has  been  exacted,  to  waive  it,  in  whole  or  in  part.^  In 
the  same  State,  where  a  conveyance  was  made  to  secure  a 
usurious  loan ;  the  grantor,  at  his  election,  to  repay  at  a  cer- 
tain time  ;  otherwise,  the  grantee  to  have  his  election  to  pur- 
chase :  held,  for  want  of  mutuality,  the  grantee  could  not 
enforce  this  contract  in  equity,  but  the  grantor  might  re- 
deem on  repaying  the  loan  with  interest ;  otherwise,  a  sale 
to  be  decreed.*^ 

32.  In  Georgia,  a  mortgagor  may  have  relief  in  equity 
from  a  usurious  conti-act,  although  he  might  dispute  the 
amount  due  at  common  law,  and  though  the  bond  and  mort- 
gage have  been  assigned.  If  the  bill  alleges  that  the  as- 
signee had  notice  of  the  usury,  and  that  the  assignment  was 
merely  colorable,  the  Court  will  grant  an  injunction  to  stay 

1  Cunningliam  v.  Davis,  7  Ired.  Eq.        *  Carter  v.  Dennison,  7  Gill,  157. 
5.  5  Feiiwick  ?j.  Katcliffo,  6  Monr.  154, 

•^  Ward  V.  Sharp,  15  Verm.  115.  ^  Butt  v.  Boudurant,  7  Monr.  421. 

8  Wilson   V.   Hardesty,   1   Md.   Ch. 
Decis.  GO. 


CH.  XIX.]      VOID    AND   VOIDABLE   MORTGAGES.  —  USURY.  597 

proceedings  on  the  execution  issued  by  virtue  of  the  fore- 
closure of  the  mortgage,  where  the  allegation  of  usury  is  not 
refuted.^ 

33.  With  regard  to  the  parties  whose  title  may  l^e  im- 
peached by  usury  in  a  mortgage  ;  it  has  been  held,  that  the 
lessee  of  an  assignee  of  a  mortgage,  obtained  on  usurious 
consideration,  without  notice  of  the  usury,  is  a  bond  fide  pur- 
chaser, and  not  affected  by  such  usury .^ 

34.  In  Jackson  v.  Henry ,3  it  was  held,  that  a  bo7id  fulc  pur- 
chaser, (/)  under  a  sale  made  by  a  power  of  attorney  con- 
tained in  a  mortgage,  is  not  affected  by  usury  in  the  mort- 
gage debt ;  such  decree  being  equivalent  to  a  foreclosure  and 
sale  under  a  decree  in  equity.  The  statutory  provision,  that 
usurious  securities  shall  be  void,  applies  only  between  the 
original  parties,  where  the  suit  is  brought  upon  the  security 
itself,  and  not  to  a  new  contract  founded  upon  it,  to  which 
an  innocent  person  is  party.  Kent,  C.  J.,  says:*  —  "The 
notice  given  by  the  advertisement  is  intended  for  the  party 
as  well  as  for  the  world,  and  he  has  an  opportunity  to  apply 
to  Chancery,  if  he  wishes  to  arrest  the  sale  on  the  ground  of 
usury ;  and  the  statute  likewise  gives  him  his  remedy  by 
action.  If  he  stands  by  and  suffers  the  sale  to  go  on,  and  an 
innocent  party  to  purchase,  unconscious  of  the  latent  defect, 
and  without  any  means  of  knowing  it,  the  purchaser  has  the 
preferable  claim  in  equity  to  protection."     (See  §  39.) 

35.  But  in  Jackson  v.  Dominick,^  which  was  an  action  of 
ejectment,  brought  upon  a  title  derived  from  the  mortgagor, 
subsequent  to  the  mortgage,  against  the  mortgagee,  who  had 
proceeded  upon  a  statutory  foreclosure,  under  the  power 
contained  in  the  mortgage,  and  obtained  an  absolute  title  ; 
the  plaintiff  was  permitted  to  go  into  evidence  of  the  usuri- 

1  Winn  V.  Ham,  Chart.  (E.  M.)  70.  *  Ibid.  196. 

2  Jackson  v.  Bowen,  7  Cow.  13.  ^  14  John.  435. 

3  10  John. 195. 

(/)  In  North  Carolina,  by  statute,  usury  cannot  be  set  up  against  a  hona 
fide  purchaser  of  land.     N.  C.  St.  1842,  1843,  107. 


598  THE   LAW    OF   MOKTGAGES.  [CH.  XIX. 

ous  consideration  of  the  mortgage,  (although  objected  to,) 
and,  upon  his  proving  usury  to  the  satisfaction  of  the  jury, 
judgment  was  rendered  for  the  plaintiff.  The  Court  say  :  ^  — 
"In  the  case  of  Jackson  v.  Henry  it  was  decided,  that  a  bond 
fide  purchaser,  without  notice,  under  a  sale  duly  made  pur- 
suant to  the  statute,  by  virtue  of  a  power  contained  in  a 
mortgage,  is  not  affected  by  usury  in  the  original  debt.  The 
Court  there  considered  such  a  sale  as  equivalent  to  a  fore- 
closure and  sale  under  a  decree  of  a  court  of  equity,  and  that 
it  could  not  be  defeated,  to  the  prejudice  of  a  bond  fide  pur- 
chaser, on  the  ground  of  usury.  That  case  was  likened  to 
the  case  of  a  contract  originally  usurious  between  the  parties, 
and  which  has  been  subsequently  changed  by  a  new  contract 
founded  on  it,  with  a  third  person,  who  had  no  notice  of  the 
usury;  in  which  case,  such  new  contract  could  not  be  im- 
peached for  the  usury  which  infected  the  original  transaction ; 
and  also  to  the  case  of  an  innocent  purchaser  for  a  valuable 
consideration,  whose  title  is  valid,  notwithstanding  he  may 
have  bought  from  one  who  had  obtained  his  title  fraudulently. 
The  general  principle,  that  a  derivative  title  is  not  better  than 
that  from  which  it  is  derived,  is  specifically  recognized  ;  but 
the  fact,  that  Henry  was  a  purchaser  without  notice  of  the 
usury,  was  considered  as  excepting  such  a  purchase  from  the 
operation  of  that  principle.  Much  stress,  in  that  case,  was 
justly  laid  upon  the  circumstance  of  the  mortgagor's  standing 
by,  and  permitting  the  sale  to  take  place,  and  an  innocent 
party  to  purchase.  The  purchaser  here  was  a  party  to  the 
corrupt  agreement  upon  which  the  mortgage  was  given,  and 
bought,  with  his  eyes  open,  a  disputed  title.  The  mortgage 
here  forms  a  part  of  the  defendant's  title  ;  and  he,  being  fully 
apprised  that  the  mortgage  was  void  in  law,  stands  in  no 
better  situation  than  if  no  foreclosure  had  taken  place.  He 
is  not  in  as  good  a  situation  as  a  bond  fide  assignee  of  an 
usurious  mortgage,  as  to  whom  there  is  no  question  that  the 
mortgage  would    be  void.     Whether  a   purchaser  under  a 

1  14  John.  441,  442. 


CH.  XIX.]      VOID    AND    VOIDABLE   MOKTGAGES. — USURY.  599 

judgment,  recovered  upon  a  usurious  debt,  with  notice  of  the 
usury,  would  acquire  a  valid  title  or  not,  is  a  point  not  now 
presented  for  decision.  Most  probably  he  would ;  but  there 
is  a  palpable  distinction  between  that  case  and  this.  Wiien 
a  cause  of  action  has  once  passed  in  rem  judicatam,  the 
defendant  and  every  other  person  is  forever  afterwards  pre- 
cluded from  availing  himself  of  any  preexisting  matter, 
which  might  have  been  insisted  upon  in  bar  of  the  recovery. 
The  original  debt  ceases  to  have  a  legal  existence,  being 
merged  in  the  judgment ;  and  the  title  of  a  purchaser  under 
it  is  derived  from  the  judgment,  independent  of  the  debt. 
But  where  the  mortgage,  and  the  power  to  sell,  form  the 
foundation  of  the  purchaser's  title  ;  if  these  are  void,  so  is  the 
title  derived  under  them,  except  in  the  case  of  an  innocent 
purchaser.  The  defendant  in  this  case  is  not  a  bond  fide 
purchaser.  A  foreclosure  of  a  mortgage  under  the  statute  is 
not  founded  upon  any  judgment.  It  is  the  mere  act  of  the 
mortgagee,  who  cannot  make  that  good  and  effectual,  by  a 
sale,  which  was  unlawful  and  void  in  its  inception." 

36.  Upon  the  question,  what  parties  may  avail  themselves 
of  the  objection  of  usury  in  a  mortgage,  the  cases  seem  not 
entirely  reconcileable.  The  general  rule  is,  that  a  stranger 
cannot  set  up  the  defence  of  usury.  But  it  is  otherwise  with 
one  claiming  under  and  in  privity  with  the  mortgagor,  in  law 
or  otherwise.^  Thus  a  purchaser  from  the  mortgagor,-  or  a 
second  mortgagee.  And  it  is  held  that,  as  against  a  second 
mortgagee,  the  mortgagee  cannot  apply  payments  made  by 
the  mortgagor  to  a  portion  of  his  debt  which  is  usurious.^ 
But  a  second  mortgagee  cannot  set  up  usury  in  the  first 
mortgage,  unless  in  his  bill  to  redeem  he  set  forth  such  usury, 
with  the  facts  and  circumstances.^ 

37.  A  direct  assignee,  in  trust,  of  the  mortgagor,  may  im- 
peach the  mortgage  for  usury ;  m.ore  especially  where  he  has 
not  bought  subject  to  the  mortgage,  and  retained  the  amount 

1  Post  V.  Dart,  8  Paige,  640;  Bro-        '^  Green  v.  Tyler,  39  Penn.  3G1. 
lasky  V.  Miller,  1  Stockt.  807.  *  AVatermau  v.  Curtis,  'M  Conn.  241. 

-  Doub  V.  Barnes,  1  Md.  Ch.  127. 


600  THE   LAW    OF   MORTGAGES.  [CH.   XIX. 

of  it  in  his  hands,  under  an  express  or  implied  agreement  to 
provide  for  it.  Such  an  assignee  stands  in  the  place  of  the 
mortgagor,  with  the  same  rights  which  he  had;  and,  like  an 
assignee  in  bankruptcy,  or  an  executor,  or  administrator, 
may  question  the  validity  of  the  debt  outstanding  against 
the  estate.!  (g-)  So  A.  made  a  deed  to  B.  of  a  tract  of  land, 
receiving  from  B.  a  writing,  stipulating,  that  A.  should  occupy 
the  land  for  eighteen  months,  and,  at  the  end  of  that  time,  B. 
should  reconvey  to  A.,  upon  receiving  the  money  advanced 
to  A.  with  usurious  interest.  B.  being  unable  to  pay,  the 
contract  was  extended.  C.  took  an  assignment  of  the  con- 
tract from  A.  in  satisfaction  of  a  judgment,  and  filed  his  bill, 
alleging  usury,  and  that  the  transaction  was  a  mere  mort- 
gage, and  not  a  sale.  Held,  C.  should  be  permitted  to  re- 
deem.^ So  where  the  holder  of  a  usurious  bond  and  mort- 
gage files  a  bill  of  foreclosure  against  the  mortgagor,  making 
a  subsequent  judgment  creditor  a  party,  in  order  that  his 
decree  may  vacate  the  judgment  lien,  in  the  hands  of  the 
purchaser  under  such  decree  ;  the  judgment  creditor  may 
rely  upon  the  defence  of  usury  to  the  full  extent  of  his  judg- 
ment lien,  although  the  bill  is  taken  joro  confesso  against  the 
mortgagor.^ 

38.  There  is,  however,  another  class  of  cases,  which  some- 
what limit  and  qualify  the  right  of  other  parties  than  the 
mortgagor  himself  to  raise  the  objection  of  usury.  Thus  it 
is  held,  that,  where  a  bill  for  foreclosure  is  brought  against 
one    who    purchased  the   equity   of  redemption   subject   to 

1  Pearsall  v.  Kingsland,  3  Etlw.  195.        ^  p^gt  v.  Dart,  8  Paige,  639.     See 
■^  Skinuer  v.  Miller,  5  Litt.  84.  Eexford  v.  Widger,  2  Coiust.  131. 


(g)  In  replevin  against  a  sheriff,  for  goods  taken  on  execution,  by  one 
claiming  under  a  prior  mortgage  from  the  judgment  debtor  ;  the  defendant 
may  set  up  as  a  defence  usury  in  such  mortgage.  Dix  v.  Van  Wyck,  2  Hill, 
522.  So  the  grantee  of  lands;  subject  to  an  annuity  or  rent-charge,  may 
set  up  the  defence  of  usury  in  the  deed  from  his  grantor  creating  the  rent- 
charge,  the  payment  of  which  was  attempted  to  be  enforced  by  the  summary 
remedy  of  distress  under  the  deed.     Lloyd  v.  Scott,  4  Pet.  205. 


CH.  XIX.]       VOID    AND    VOIDABLE   MORTGAGES.  —  USURY.  601 

payment  of  the  mortgage,  he  cannot  set  up  usury  in  the 
mortgage  as  a  defence,  and  thus  obtain  an  interest  in  the 
property,  which  the  mortgagor  never  agreed  nor  intended  to 
transfer.^  But  in  such  case  the  plaintiff  must  set  forth  in  his 
bill  the  execution  and  terms  of  the  conveyance.'-^  So  the 
demandant  in  a  real  action  counted  generally  on  his  own 
seisin  and  a  disseisin  by  the  tenant.  The  tenant  set  up  a 
title  derived  from  one  Woods,  who  had  mortgaged  the  prem- 
ises to  the  demandant,  and  afterwards  conveyed  the  equity 
of  redemption  to  the  tenant.  The  language  of  this  convey- 
ance was  as  follows :  said  Woods  "  demised,  released,  and 
quitclaimed  to  the  said  Kemp  all  the  right  in  equity  of  re- 
deeming, which  he  had  in  the  premises."  The  deed  did  not 
mention  the  mortgage ;  nor  in  any  manner  specify  the  in- 
cumbrance alluded  to  ;  nor  state  how  the  right  of  redemption 
arose.  But  no  other  mortgage  than  that  to  the  demandant 
was  suggested  at  the  trial.  The  tenant  objected  to  the  title 
of  the  demandant,  upon  the  ground  that  the  mortgage  was 
made  on  a  parol,  usurious  contract.  Held,  that  evidence  of 
such  usury  was  inadmissible,^  The  Court  say:  —  "  Although 
by  the  statute  of  1783,  ch.  55,  §  1,  all  mortgages  on  usurious 
considerations  are  declared  to  be  utterly  void ;  yet  it  never 
could  have  been  intended  that  a  stranger  might  enter  on  the 
mortgagee  or  commit  a  trespass  on  the  land,  and  justify 
himself  under  the  statute,  when  all  parties  interested  in  the 
title  should  be  disposed  to  acquiesce  in  the  contract.  The 
statute  must  have  a  reasonable  construction,  and  in  conform- 
ity to  its  general  object ;  which  was  to  protect  debtors  from 
the  enforcement  of  unconscionable  demands.  A  mortgage 
on  a  usurious  consideration  is  therefore  void  only  as  against 
the  mortgagor,  and  those  who  may  lawfully  hold  the  estate 
under  him.  On  this  construction,  if  the  tenant  had  pur- 
chased the  land,  he  might  avoid  a  previous  usurious  mort- 

1  Morris  v.  Floyd,  5  Barb.  130 ;  -  Hetfield  v.  Newton,  3  Sandf.  Ch. 
Brooks  V.  Avery,  4  Comst.  225 ;  Post    5G4.  ^  ri--io 

V.  Dart,  8  Paige,  640.  See  Gordon  v.  '-^  Green  v.  Keuip,  13  Mass.  olo-yl8. 
Hobart,  2  Sumn.  402. 

VOL.  I.  51  ■ 


602  THE   LAW   OF   MORTGAGES.  [CH.  XIX. 

gage,  although  he  had  notice  of  such  mortgage  before  the 
purchase.  But  the  tenant  has  no  title  in  the  land  before 
redeeming.  He  has  purchased  only  the  right  to  redeem; 
and  if  he  will  not  avail  himself  of  this  right,  which  is  the 
basis  of  his  title,  he  cannot  hold  the  land  ;  and  having  no 
title  in  the  land,  he  cannot  be  permitted  to  avoid  the  mort- 
gage by  plea  or  proof  of  usury.  The  principle  contended  for 
by  the  tenant's  counsel  would  serve  to  encourage  fraud  and 
injustice,  rather  than  to  restrain  the  taking  of  excessive 
usury."  So  it  is  held  that  this  defence  cannot  be  set  up  by 
a  subsequent  mortgagee  ;  more  especially  by  one  who  has 
foreclosed  his  mortgage  and  himself  become  the  purchaser, 
and  sold  the  estate  subject  to  the  first  incumbrance.^  Or,  if 
a  subsequent  mortgagee  can  set  up  this  objection,  that  he 
must  allege  it  in  his  bill.^  Thus,  where  a  mortgagor  pays 
usurious  annual  interest,  which  is  received  and  accounted 
for  as  interest ;  in  a  bill  for  foreclosure,  a  subsequent  mort- 
gagee, made  party  defendant,  cannot  claim  to  have  the  ex- 
cess of  interest  deducted  from  the  amount  to  be  paid  in 
redemption  of  the  first  mortgage.^  So,  in  a  real  action,  the 
tenant  alleged  that  the  demandants'  title  was  by  mortgage, 
and  pleaded  usury  paid  to  a  prior  holder  of  the  mortgage ; 
averring  that  the  note  came  to  the  demandants  discredited. 
The  demandants,  in  their  replication,  denied  that  the  note 
came  to  them  discredited  ;  set  forth  several  assignments ;  the 
foreclosure  of  the  mortgage,  and  a  conveyance  of  the  prem- 
ises to  themselves  ;  alleged  that  they  took  without  notice  of 
usurious  transactions,  (tendering  their  own  oath,)  and  that 
the  usury,  if  paid  at  all,  was  paid  to  one  A.,  a  former  -holder 
of  the  note  and  mortgage,  after  he  had  assigned  the  same. 
They  also  tendered  the  oath  of  A.,  to  prove  that  the  amount 
of  usury  taken  was  less  than  that  alleged.  Held,  this  plea 
was  bad  ;  that  the  tenant  should  first  allege  that  the  demand- 
ant's title  is  by  mortgage  only,  and  then  plead  usury  ;  and  in 
case  of  such  an  allegation  and  plea,  the  plaintiff  may,  1,  file 

1  Morris  v.  Floyd,  5  Barb.  130 ;  Me-        ^  Baldwin  v.  Norton,  2  Conn.  161. 
chanics',  &c.  v.  Edwards,  1  Barb.  ^71.         »  Churchill  v.  Cole,  32  Verm.  93. 


CH.  XIX.]      VOID   AND    VOIDABLE   MORTGAGES.  —  USURY.  603 

a  counter  allegation ;  2,  make  an  objection,  which  would  be 
sufficient,  if  the  action  were  upon  the  note;  3,  reply  that  a 
smaller  sum  only  was  taken  as  usury,  and  ofl'er  to  verify  by 
oath;  4,  reply  that  tlie  mortgage  is  foreclosed.  If  the  de- 
mandant reply  a  foreclosure,  and  fail  in  sustaining  his  rep- 
lication, he  admits  the  usury,  and  such  judgment  will  be 
rendered  for  the  tenant  as  his  plea  entitles  him  to  ;  unless 
the  demandant  obtain  leave  to  reply  to  the  plea  of  usnry.^ 

39.  But  the  law  will  always  afford  to  the  mortgagor  an 
opportunity  to  avail  himself  of  the  defence  of  usury,  unless 
he  is  guilty  of  some  laches.  Thus,  an  equity  of  redemption 
having  been  sold  on  execution,  and  the  purchaser  having  be- 
come absolute  owner  by  the  lapse  of  a  year,  he  took  an  as- 
signment of  the  mortgage  and  thus  acquired  the  whole  estate  ; 
but  the  mortgagor  always  remained  in  possession.  In  a  writ 
of  entry  by  the  purchaser  against  the  mortgagor ;  held,  the 
latter  might  set  up,  as  a  defence,  usury  in  the  mortgage  notes  ; 
this  being  the  first  opportunity  afforded  him  to  avail  himself 
of  such  defence,  and  the  right  not  having  been  waived  or  for- 
feited by  any  neglect.^  So  it  is  held  that  a  statutory  fore- 
closure of  a  usurious  mortgage,  and  a  sale  of  the  mortgaged 
premises,  followed  by  a  sale  thereof  to  a  third  person  for  a 
valuable  consideration,  without  notice  of  the  usury,  will  not 
convey  a  valid  title  to  the  land,  or  estop  the  mortgagor  from 
alleging  usury  in  the  mortgage.^     (See  §  34.) 

40.  If  judgment  has  been  recovered  upon  a  usurious  con- 
tract secured  by  mortgage,  and  a  new  mortgage  given,  the 
mortgagor  cannot  resist  a  suit  on  the  latter,  upon  the  ground 
of  usury.  The  judgment  upon  the  contract  which  was  af- 
fected by  usury  having  concluded  the  debtor  from  showing 
it  in  an  action  upon  the  judgment ;  be  is  equally  concluded 
in  a  suit  on  the  mortgage.*  So  where  an  execution  is  levied 
upon  a  mortgaged  estate,  and  the  incumbrance  estimated  by 
appraisers  ;  upon  a  petition  to  redeem,  the  creditor  cannot  set 

1  Briggs  V.  Sholes,  15  N.  H.  52.  *  Thatcher  v.    Gammon,   12  Mass. 

2  Richardson  v.  Field,  6  Greenl.  35.     268. 
8  Hyland  v.  Stafford,  10  Barb.  558. 


604  THE   LAW   OF   MORTGAGES.  [CH.  XIX. 

up  usury  in  the  mortgage.^  So,  where  a  mortgagee  sues 
upon  his  mortgage,  and  the  mortgagor  defends  upon  the 
ground  of  usury,  but  fails  in  such  defence,  and  afterwards 
conveys  his  right  in  the  land  ;  the  purchaser  cannot  main- 
tain ejectment  against  the  mortgagee  upon  this  ground, 
being  estopped  by  the  former  judgment.^  So,  where  mort- 
gage notes  are  usurious,  the  mortgagor  must  set  up  this 
defence  to  a  bill  for  foreclosure,  or  he  will  be  barred  by  the 
decree.  But  if  the  original  contract,  proved  by  the  notes, 
was  not  usurious,  a  subsequent  payment  of  usury  has  no  con- 
nection with  it,  and  may  be  recovered  back  as  money  had 
and  received,  even  after  a  decree  for  foreclosure,  without  de- 
duction of  such  usury.^  So,  after  a  default  has  been  regu- 
larly entered  in  a  foreclosure  suit,  it  will  not  be  opened  for 
the  purpose  of  enabling  the  defendant  to  set  up  as  a  defence, 
that  the  mortgage  was  given  in  violation  of  the  restraining 
law,  except  upon  the  terms  of  paying  the  moneys  or  property 
actually  received  from  the  mortgagee.*  So  a  judgment  cred- 
itor, acquiring  a  lien  upon  the  mortgagor's  whole  interest  in 
premises  subject  to  a  usurious  mortgage,  may  obtain  a  per- 
fect title  by  sale  and  purchase  under  the  judgment ;  and  may 
then  enjoy  the  property  as  fully  as  the  mortgagor  would  have 
done  had  he  continued  to  be  the  owner.^  (A) 

41.  In  New  Hampshire,  in  a  writ  of  entry  upon  a  mort- 
gage, the  defendant  may  reduce  the  amount  of  the  condi- 
tional judgment  by  a  deduction  of  three  times  the  amount 
of  the  excessive  interest.  The  plea  may  be  with  a  general 
verification,  as  at  common  law,  or  with  a  special  verification 

1  Waterman  v.  Curtis,  26  Conn.  241.      *  Bard  v.  Fort,  3  Barb.  Ch.  632. 
-  Adams  v.  Barnes,  17  Mass.  365.  ^  Post  v.  Dart,  8  Paige,  640. 

3  Grow  V.  Albee,  19  Verm.  540. 


(/()  Where  a  mortgage  is  made  to  secure  a  claim  wliicli  Is  void  by  statute, 
and  a  subsequent  mortgage  to  another  person  for  a  lawful  debt,  and  the 
former  claim  is  satisfied  by  a  sale  or  a  discharge  of  the  first  mortgage  ;  the 
second  mortgagee  cannot  recover  the  amount  from  the  first  mortgagee. 
Ellsworth  V.  Mitchell,  31  Maine,  247. 


CH.  XIX.]      VOID   AND   VOIDABLE   MORTGAGES.  —  USURY.  605 

under  the  statute,  tendering  the  defendant's  oath.  It  is  a 
good  replication,  that  the  same  defence  was  set  up  unsuccess- 
fully to  a  suit  upon  the  mortgage  note  ;  but  not  without  an 
express  averment  of  a  judgment  in  such  suit.^     (See  §  24.) 

42.  In  Connecticut,  in  an  action  of  ejectment,  the  defend- 
ant may  prove  usury,  in  order  to  invalidate  the  plaintifl's 
title,  founded  on  mortgage,  without  having  given  notice.^ 

43.  To  a  bill  of  foreclosure,  the  defence  of  usury  must 
be  set  up  by  way  of  plea,  and,  if  insisted  upon  in  the  an- 
swer, it  must  be  proved  not  by  the  answer,  but  by  evidence 
aliunde.^ 

44.  It  has  been  held,  that  parol  evidence  is  admissible  to 
prove  a  deed  absolute  in  form  to  be  in  reality  a  usurious 
mortgage.^  But  in  the  case  of  Flint  v.  Sheldon,^  the  de- 
mandant, to  prove  his  seisin,  produced  an  absolute  deed  from 
the  tenant  to  him.  The  defence  was,  that  the  deed  was 
made  upon  a  usurious  contract ;  and  the  tenant  offered  to 
prove  by  parol  evidence,  that  the  conveyance  was  not,  as  it 
purported  to  be,  an  absolute  one,  nor  the  contract  upon  which 
it  was  made  a  purchase  and  sale  of  land,  but  an  agreement 
for  the  loan  and  repayment  of  money,  the  deed  to  be  void,  or 
the  premises  reconveyed,  upon  such  repayment.  Held,  such 
evidence  was  inadmissible.  The  Court  say,^  after  remarking 
that  independently  of  the  rate  of  interest,  it  would  be  clearly 
incompetent  to  control  an  absolute  deed  by  evidence  of  a 
parol  agreement :  —  "  The  question  then  is,  whether  the  rate 
of  interest,  at  which  the  money  is  supposed  to  have  been  lent, 
makes  any  difference  in  such  a  case.  The  parol  evidence 
would  tend  to  explain  or  vary  the  import  and  effect  of  the 
deed,  as  much  if  the  loan  were  proved  to  be  at  the  rate  of 
seven  per  cent.,  as  if  it  were  at  the  rate  of  six.  The  statute 
of  usury  has  not  rescinded,  nor  in  any  manner  modified  the 
rules  of  evidence  before  mentioned.     The  intention  of  the 

1  Divoll  V.  Atwood,  41  N.  H.  443.  *  Stapp    v.   Plielps,   7   Dana,   300  ; 

2  Holton  V.  Button,  4  Conn.  436.  Cook  v.  CoIytT,  2  U.  Mon.  72. 

s  Dyer  v.   Lincoln,   11  Verm.  300 ;        ^  13  Mass.  443.     See  ch.  3,  §  14. 
Briggs  V.  Sholes,  14  N.  H.  262.  «  Ibid.  447. 

51* 


606  THE    LAW    OF    MORTGAGES.  [CH.  XIX. 

legislature  was  to  render  void  every  usurious  contract ;  but 
they  have  left  it  to  be  ascertained,  as  in  other  cases,  whether 
there  is  a  contract  for  the  loan  and  repayment  of  money,  be- 
fore the  provisions  of  the  statute  can  apply."  They  further 
remark,^  as  to  the  consequences  of  a  different  doctrine,  "  on 
proving  usury  in  any  conveyance  within  forty  years  by  the 
demandant  or  his  ancestor,  he  would  recover  the  land  against 
the  grantee,  or  any  assignee  of  his,  however  remote.  For  if 
the  statute  of  usury  applies  to  the  contract,  it  renders  it 
merely  void.  It  would  not,  therefore,  be  enough,  that  a  pur- 
chaser of  land  knew  his  own  contract  to  be  legal  and  valid ; 
he  must  be  certain  that  every  successive  sale  of  the  land 
for  forty  years  preceding  had  been  likewise  untainted  with 
usury." 

45.  Where  one  purchased  an  equity  of  redemption,  then 
took  an  assignment  of  the  mortgage,  and  immediately  mort- 
gaged to  the  original  mortgagee  ;  held,  in  a  writ  of  entry 
brought  by  the  assignee  against  the  mortgagor,  the  declarg,- 
tions  of  the  original  mortgagee  could  not  be  given  in  evi- 
dence, to  prove  usury  in  the  first  mortgage.'^ 

1  13  Mass.  450.  2  Richardson  v.  Field,  6  Greenl.  303. 


CII.  XX.]        VOID,   ETC.   MORTGAGES.  —  CONSIDERATION.  607 


CHAPTER   XX. 

VOID    AND    VOIDABLE    MORTGAGES.      ILLEGALITY,  WANT,  OR   FAIL- 
URE   OF    CONSIDERATION. 


1.  Illegal  consideration. 

5.  AVant  of  consideration ;  as  be- 
tween tlio  parties,  and  in  relation  to 
creditors,  &c. 


12.  Want  or  failure  of  consideration, 
consisting  in  a  defect  of  title. 


1.  In  reference  to  the  consideration  of  a  mortgage,  objec- 
tion may  be  made  to  the  mortgage,  upon  the  ground  either 
of  illegality,  or  of  an  entire  absence,  of  consideration. 

2.  Ulegaiity  of  consideration  undoubtedly,  in  general,  avoids 
a  mortgage,  as  well  as  an  executory  contract ;  whether  such 
illegality  consist  in  violation  of  the  common  law  or  of  a  pos- 
itive statute. 

3.  But  it  is  held  that  a  mortgagor  may  redeem,  although 
the  mortgage  was  given  to  secure  notes,  founded  on  a  con- 
sideration which  was  illegal  or  in  violation  of  public  policy.^ 

4.  A  mortgage,  given  to  secure  payment  of  a  certain  sum 
to  the  county,  as  the  condition  of  a  pardon,  is  held  not 
void  for  dnress?  But  a  mortgage  taken  to  secure  a  debt, 
but  on  the  consideration,  that  the  mortgagee  would  use  his 
efforts  to  obtain  a  nolle  prosequi  to  an  indictment  pending 
against  the  mortgagors,  is  against  public  policy  and  void.^ 

5.  The  further  question  has  arisen,  whether  a  mortgage 
could  be  avoided  for  want  of  consideration.  A  mortgage  of 
real  estate  is  a  sealed  instrument,  and  in  general  the  existence 
of  a  consideration  of  such  an  instrument  is  not  open  to  dis- 
pute. Thus  it  is  held,  that  a  mortgagor  is  estopped  from 
saying  that  no  title  was  conveyed  to  the  mortgagee.*     The 

1  Cowles  V.  Eaguet,  U  Oliio,  38.  "  Bailey   v.   Lincoln   Academy,   12 

2  Rood  V.  Winslow,  2  Doug.  68.  Mis.   174.      Sec    Brock    v.  Lewis,   7 

3  Wildey  v.  Collier,  7  Md.  273.  Kich.  Eq.  77. 


608  THE   LAW    OF   MORTGAGES.  [CH.  XX. 

peculiar  nature  of  a  mortgage,  however,  as  a  mere  incident 
to  the  personal  obligation  which  it  is  made  to  secure,  has,  in 
this'  as  in  other  respects,  given  to  it  a  different  legal  effect 
from  that  of  other  instruments,  which  are  in  form  similar.^  (a) 
6.  In  reference  to  the  sufficiency  of  a  consideration  ;  where 

1  See  Pratt  v.  Law,  'J  Crancli,  456  ;  Doniphan  v.  Panton,  19  Mis.  288. 


(a)  In  some  instances,  the  general  principle  upon  the  subject  of  consider- 
ation is  enforced  by  express  statutory  provision.  Thus,  in  Massachusetts,  all 
mortgages,  in  which  the  whole  or  any  part  of  the  consideration  shall  be  for 
money  or  goods  won  by  gaming,  or  by  betting  on  the  sides  or  hands  of  any 
persons  gaming,  or  for  repaying  money  knowingly  lent  or  advanced  for 
gaming  or  betting,  or  at  the  time  and  place  thereof  to  any  person  gaming  or 
betting,  are  void  between  the  parties,  and  as  to  all  but  ignorant,  bond  Jide 
purchasers  ;  and,  when  declared  void,  the  lands  pas^  to  the  then  heirs  of  the 
mortgagor.     Mass.  Rev.  Sts.  387.     Similar  statutes  exist  in  other  States. 

A  mortgage  informal  by  statute  may  be  good  at  common  law.  Haffley  v. 
Maier,  13  Cal.  13.  A  party  received,  as  the  consideration  of  a  mortgage  to 
an  insurance  company,  policies  of  the  company  to  the  amount  of  the  mort- 
gage. Afterwards,  by  agreement  with  the  president  of  the  company,  he 
gave  back  a  part  of  the  policies  for  the  mortgagor's  own  note  and  that 
of  another  party.  Held,  that  this  disposition  of  part  of  the  policies  did 
not  render  the  transaction  a  bona  fide  one.  General  Ins.  Co.  v.  United 
States  Ins.  Co.  10  Md.  517. 

In  Georgia,  in  a  proceeding  to  foreclose  a  mortgage,  the  mortgagor,  at 
the  return  term,  may  show  cause  against  the  rule  nisi,  from  what  appears 
on  the  face  of  the  papei-s,  or  by  pleading  and  proving  that  the  mortgage- 
note  is  usurious,  or  founded  upon  a  gaming  consideration,  or  that  it  was 
given  to  compound  a  felony,  or  was  coerced  by  duress,  or  that  the  mortgage 
has  been  released,  or  by  any  other  meritorious  defence  ;  and  the  mortgagee, 
before  the  rule  will  be  made  absolute,  must  show  that  he  is  entitled  to  fore- 
close, and  what  is  due  on  the  mortgage.     Dixon  v.  Curler,  27  Geo.  248. 

The  illegality  of  the  mortgage  does  not  necessarily  avoid  the  debt.  It 
may  be  proved  by  parol  evidence.     Shaver  v.  Bear,  &c.,  10  Cal.  396. 

One  who  enters  upon  public  land  under  a  previous  possessor  cannot 
avoid  a  mortgage  executed  by  his  predecessor,  on  the  ground  that  the  mort- 
gage was  not  made  according  to  the  statute.  Houseman  v.  Chase,  1 2  Cal. 
290. 

Uncertainty  of  description  in  a  mortgage  is  no  reason  for  refusing  a  fore- 
closure sale,  though  it  may  affect  the  title  sold.  Tryon  v.  Sutton,  13  Cal. 
490;  Whitney  v.  Buckman,  Ibid.  536. 


CH.  XX.]        VOID,   ETC.   MORTGAGES.  — CONSIDERATION.  609 

the  plaintiff  contracted  to  sell,  and  the  defendant  to  buy,  a 
tract  of  land,  the  deed  to  be  received  as  soon  as  it  could  be 
conveniently  executed,  and  a  mortgage  made  for  the  price ; 
and  the  mortgage  was  executed  and  left  with  the  plaintiff's 
agent,  and  the  plaintiff  executed  a  deed,  and  sent  it  to  his 
agent  for  delivery :  held,  in  a  suit  on  the  mortgage,  it  was 
not  invalid  for  want  of  consideration.^  So  forbearing  to  col- 
lect a  debt  for  three  months  is  sufficient  consideration  for  a 
mortgage  to  secure  the  debt,  if  any  consideration  be  neces- 
sary.2  So  a  mortgage  may  be  executed  to  secure  a  debt  pre- 
viously contracted ;  and  by  a  partner  and  his  wife,  to  secure 
the  debt  of  the  firm.^  So  the  renewal  of  a  note  in  consid- 
eration that  it  shall  be  secured  by  the  mortgage  of  a  third 
person  constitutes  a  legal  consideration  for  the  mortgage.^  (b) 
So  where  the  grantee  of  land  m^de  a  mortgage  of  it  to  a 
third  person,  which  mortgage  was  afterwards  disputed,  on 
the  ground  of  want  of  consideration  both  as  to  the  grantee 
and  mortgagee;  and  the  consideration,  as  to  the  former,  was 
the  conveyance  itself,  and,  as  to  the  latter,  the  payment  by 
him  of  debts  due  the  grantor,  and  of  other  sums,  at  the  re- 
quest of  a  party  interested  in  the  land  :  held,  in  the  absence 
of  fraud,  these  considerations  were  sufficient,  and  the  mort- 
gage valid  to  the  extent  of  the  actual  payments  by  the  mort- 
gagee ;  and  that  the  fact,  that  the  consideration  stated  in  the 
mortgage  far  exceeded  the  amount  of  such  payments,  was 
only  presumptive  evidence  of  fraud,  which  might  be  rebut- 

1  Farmers',  &c.  v.  Curtis,  3  Seld.  46.        ^  Cooley  v.  Hobart,  8  Clarke,  (Iowa) 

2  Bank,  &c.  v.   Carpenter,  Wright,     358. 

729.  *  Magruder  v.  State  Bank,  18  Ark. 

9. 


(h)  When  the  price  of  property  was  paid  in  cash,  with  money  borrowed 
by  the  purchaser,  but  at  the  same  time  the  purchaser  executed  his  note  for 
the  amount  to  the  order  of  the  vendor,  and  consented,  in  the  act  of  sale, 
to  a  mortgage  upon  the  property,  in  favor  of  the  vendor,  or  any  bond  fide 
holder  of  the  note ;  the  transaction  cannot  be  considered  simulated,  and  the 
lender  of  the  money,  as  holder  of  the  note,  will  be  protected  in  his  right 
of  mortgage.     Cole  v.  Lovenskiold,  12  La.  An.  16. 


610  THE   LAW    OF   MORTGAGES.  [CH.  XX. 

ted.i  So,  where  A.  gave  his  notes  to  three  persons,  for  B.'s 
benefit,  one  for  $1,500,  and  another  for  $3,500,  and  took  from 

B.  his  note  for  $5,000,  secured  by  mortgage ;  held,  the  trans- 
action was  a  valid  one.^ 

7.  In  the  case  of  Wease  v.  Peirce,^  it  was  held,  that  want 
of  consideration,  for  the  note  secm-ed  by  a  mortgage,  is  a 
good  defence  to  an  action  to  foreclose  such  mortgage,  brought 
by  the  administrator  of  the  mortgagee,  even  though  the  note 
was  made  for  the  purpose  of  defrauding  creditors.     Shaw, 

C.  J.,  in  giving  the  opinion  of  the  Court,  suggested  various 
considerations  as  the  grounds  of  this  decision.  The  object 
of  such  an  action  is  chiefly  to  enforce  payment  of  the  debt, 
and  for  this  reason  the  right  of  action  is  vested  in  the  admin- 
istrator, to  whom  the  debt  itself  belongs.  So  also  the  judg- 
ment is  conditional,  and  becomes  vacated  if  the  condition  of 
payment  within  sixty  days  be  complied  with.  Of  course, 
therefore,  the  Court  are  bound  to  inquire  how  much  is  due, 
and,  when  it  appears  that  there  was  no  consideration  for  the 
note,  there  is  nothing  to  found  a  conditional  judgment  upon, 
and  the  action  cannot  be  sustained.  Although  an  intention 
to  defraud  creditors  might  not  of  itself  constitute  a  defence 
to  the  note,  if  a  consideration  were  proved  ;  yet  such  inten- 
tion is  no  answer  to  the  defence  arising  from  want  of  consid- 
eration. In  such  case  the  maxim  applies,  in  pari  delicto^ 
potior  est  conditio  defendentis.  So,  in  Abbe  v.  Newton,*  a 
note  and  mortgage  were  made  for  inadequate  considera- 
tion. Upon  a  bill  for  foreclosure  against  a  purchaser  from 
the  mortgagor,  making  the  latter  a  party  ;  held,  the  plaintiff 
should  have  a  decree  only  for  the  value  of  the  property.  So, 
a  conditional  pardon  having  requu-ed  the  criminal  to  secure 
$1,000  to  the  county,  the  county  commissioners  obtained  a 
mortgage  for  $1,150.  Held  good  for  $1,000,  but  void  for 
the  rest.5  And  in  the  case  of  Mackey  v.  Brownfield,''  which 
was  scire  facias  upon  a  mortgage,  it  was  held,  that  the  mort- 

1  Parker  v.  Barker,  2  Met.  423.  ^  Rood  v.  Winslow,  2  Doug.  (Mich.) 

2  Bisliop  V.  Warner,  19  Conn.  460.       68. 

8  24  Pick.  141.  «  13  S.  &  R.  239. 

<  19  Conn.  20. 


CH.  XX.]        VOID,    ETC.    MOllTGAGES.  — CONSIDERATION.  .      611 

gagor  might  give  in  evidence  admissions  of  the  mortgagee 
that  the  mortgage  was  made  for  more  money  than  the  niort- 
gagorreceived. 

8.  Where  land  is  defectively  conveyed  in  satisfaction  of 
a  mortgage,  and  no  title  passes  ;  a  new  mortgage  may  be 
made  for  this  consideration,  but  the  old  mortgage  cannot  be 
revived  without  the  mortgagor's  consent  and  that  of  subse- 
quent mortgagees.^ 

9.  In  New  York,  the  Revised  Statutes  allow  want  of  con- 
sideration to  be  set  up  as  a  defence  against  a  sealed  instru- 
ment. But  where  an  executor  brought  an  action  for  money 
had  and  received,  and  the  defendant  claimed  to  have  received 
the  money  under  a  mortgage  from  the  testator;  held,  the 
above  provision  did  not  apply  to  cases  where  the  considera- 
tion comes  in  question  collaterally ;  and  that  want  of  con- 
sideration for  such  mortgage  could  not  be  set  up  in  defence 
to  the  action.^ 

10.  Want  of  consideration  may  of  course  be  set  up  in  case 
of  a  mortgage,  as  of  other  deeds,  to  show  fraud  against  cred- 
itors. Thus  it  is  held  erroneous  to  decree  foreclosure  of  a 
mortgage,  alleged  to  have  been  executed  in  fraud  of  creditors, 
where  no  consideration  was  advanced  by  the  mortgagee.^ 
Though,  where  the  consideration  of  a  mortgage  was  partly 
made  up  by  an  allowance  of  interest,  the  mortgage  will  not  be 
considered  as  fraudulent  against  creditors,  because  such  allow- 
ance was  of  a  nature  not  recoverable  at  law.'*  So  a  mortgagee, 
claiming  against  a  purchaser  under  a  judgment  creditor  of  the 
mortgagor,  must  prove  the  consideration  of  his  mortgage.^ 
So  a  person  in  failing  circumstances,  and  about  to  mortgage 
his  real  estate  and  assign  his  personal  property  for  the  security 
of  certain  creditors,  gave  his  own  note  for  $800,  and  included 
it  in  the  first  mortgage  and  the  assignment,  on  the  sole  con- 
sideration that  the  promisee  should  give  his  note  for  the  same 
amount  to  the  mortgagor,  in  order  to  furnish  him  with  the 

1  Lasselle  v.  Barnett,  1  Blackf.150.         *  Spencer  v.  Ayrault,  10  N.  Y.  (6 

2  Gilleland  v.  Failing,  5  Denio,  808.     Seld.)  202. 

^  Miller  v.  Marckle,  21  111.  152.  '"  McGintry  v.  Reeves,  10  Ala.  137. 


612     .  THE   LAW    OF   MORTGAGES.  [CH.  XX. 

means  of  support  for  himself  and  his  family,  until  he  could 
resume  business,  and  to  enable  him  to  make  some  provision 
for  unsecured  claims.  The  promisee  accordingly  gave  his 
note,  and  paid  thereupon  $200,  which  the  promisor  applied 
exclusively  to  his  own  support.  Held,  the  debt  thus  created 
was  invalid  against  other  creditors,  and  no  part  of  it  could 
be  protected  by  the  securities  held  by  the  promisee.^  So  a 
'  mortgage  from  son  to  father,  mortgaged  to  secure  payment 
of  a  certain  sum  advanced  in  lands,  since  mortgaged,  im- 
ports that  the  lands  were  given  as  an  advancement,  and  is 
invalid  as  against  creditors  of  the  mortgagor.^  (c) 

11.  But  on  the  other  hand,  where  the  plaintiff  avers  that  he 
is  a  creditor  of  one  of  the  defendants,  and  that  the  latter  had 
executed  a  mortgage  in  favor  of  the  other  defendant,  with- 
out consideration,  and  for  the  fraudulent  purpose  of  defeating 
the  plaintiff's  recourse  upon  the  property,  and  prays  that  the 
mortgage  may  be  cancelled,  and  the  property  subjected  to 
his  claims;  the  plaintiff  must  prove  himself  a  creditor,  even 
though  judgment  was  rendered  by  default.^ 

12.  In  cases  of  a  conveyance  of  land,  and  a  mortgage 
back  for  the  price,  the  question  has  often  been  raised, 
whether  ivant  or  failure  of  consideration,  consisting  in  a 
defect  of  title  on  the  part  of  the  mortgagee  or  grantor,  can 
be  set  up  as  a  defence  to  a  suit  upon  the  mortgage.*  [d)     In 

1  Pettibone  v.  Stevens,  15  Conn.  19.        *  See  Napier  v.  Elara,  6  Yerg.  108; 
^  Waller  v.  Todd,  3  Dana,  503.  Forster  v.  Gillam,  1  Harr.  840. 

3  Fink  V.  Martin,  1  La.  Ann.  R.  117. 

(c)  Two  foreclosure  suits  were  consolidated  hy  consent,  and  the  second 
bill  agreed  to  be  taken  as  an  answer  and  cross-bill  to  the  first ;  the  first 
complainant  admitting  the  validity  of  the  second  mortgage,  while  the  sec- 
ond alleged,  that  the  first  mortgage  was  intended  to  hinder  and  delay  cred- 
itors, and  that  the  debts  secured  by  it  were  fictitious.  Held,  the  first  com- 
plainant, as  against  the  second,  must  prove  the  existence  and  bona  fides  of 
this  debt.     De  Vendal  v.  Malone,  25  Ala.  272. 

(rf)  A  vendee  may  deduct,  from  the  amount  of  his  purchase-money,  the 
value  of  an  easement  in  favor  of  another  estate,  to  which  the  land  sold  is 
servient,  existing  at  the  time  of  his  conveyance,  and  of  which  the  vendee  at 
that  time  had  no  notice.     Stehley  v.  Irvin,  8  Barr,  500. 


CH.   XX.J        VOID,   ETC.   MORTGAGES. —  CONSIDERATION.  G13 

Van  Waggoner  v.  M'Ewen,i  a  defence  to  a  bill  for  fore- 
closure was  denied,  because  the  party  merely  alleged  an  out- 
standing title.  So  in  Van  Riper  v.  Williams,-  to  a  bill  for 
foreclosure,  the  defendant  answered,  that  the  mortgage  was 
given  for  the  price  of  land,  conveyed  with  covenant  of  seisin 
and  against  incumbrances,  except  a  specified  mortgage,  but 
that  the  premises  were  subject  to  another  mortgage  "still 
outstanding,  unsatisfied,  and  uncancelled."  The  case  being 
submitted  on  the  pleadings  and  proofs  ;  held,  the  mortgage 
must  be  removed,  before  a  decree  for  foreclosure  and  sale 
could  be  made,  or  a  sufficient  portion  of  the  proceeds  of  sale 
ordered  to  be  applied  to  the  mortgage,  and  deducted  from 
the  debt. 

13.  But  the  weight  of  authority  is  contrary  to  these  decis- 
ions. Thus  a  conveyance  was  made  with  warranty,  and  a 
bond  and  mortgage  back  to  secure  part  of  the  price.  The 
mortgagor  brings  a  bill  in  equity  for  an  injunction  of  a  suit 
at  law,  upon  the  ground  of  a  failure  of  consideration  of  the 
bond  and  mortgage,  consisting  in  a  want  of  title  in  the  mort- 
gagee. It  appeared,  that  the  plaintiff  in  equity  had  taken 
possession  and  never  been  evicted  ;  that  the  securities  had 
been  assigned,  for  value  ;  and  that  the  plaintiff,  in  considera- 
tion of  forbearance,  gave  the  assignee  a  new  bond  and  mort- 
gage, the  latter  having  no  notice  of  any  fraud  or  failure  of 
consideration  in  the  original  transaction.  Held,  the  bill  could 
not  be  maintained.'^  So  a  conveyance  was  made  to  the  pres- 
ident of  an  incorporated  company  and  his  successoi's  in  trust 
for  the  stockholders.  The  president,  under  a  power  from  the 
stockholders,  conveyed  and  delivered  possession  to  the  de- 
fendant, having  notice  of  his  title,  and  took  notes  for  the 
price,  secured  by  mortgage  of  the  property.  In  a  bill  to  fore- 
close, brought  by  an  assignee  of  one  of  the  notes,  the  mort- 
gagor sought  to  defend,  upon  the  ground  that  the  deed  to 
the  president  was  void,  but  did  not  allege  any  fraud  or  mis- 

1  1  Green,  Ch.  412.  See  Jaques  v.        ^  Biinipus  v.  Plainer,  1  Johns.  Cli. 

Esler,  3  Ibid.  462.  213  ;  Davison  v.  De  Freest,  3  Sandf. 

-  I'Oreen,  Ch.  407.  Ch.  45G. 

VOL.  I.  52 


614  THE    LAW    OF    MORTGAGES.  [CII.    XX. 

take.  There  had  been  no  eviction  from  the  premises.  Hel(], 
no  defence  to  a  suit.^  So  the  defence  was  made  to  a  suit 
for  foreclosure,  that  the  mortgage  was  given  to  secure  the 
price  of  the  land,  which  was  conveyed .  to  the  defendant 
without  covenants,  and  that  an  adverse  claimant  had 
brouo-ht  a  suit  for  the  land,  which  was  vigorously  prose- 
cuted, and,  if  successful,  would  deprive  him  of  all  title  except 
a  rio-ht  to  dower ;  the  defendant  having  been  in  possession 
since  the  purchase,  and  never  evicted.  Held,  the  plaintift' 
should  have  a  decree  for  a  sale,  and  for  payment  of  any  de- 
ficiency against  the  mortgagor.^  So  a  mortgage  was  given 
in  consideration  of  land  purchased  by  the  mortgagor,  the 
title  to  a  part  of  which  failed,  but  without  fraud  on  the  part 
of  the  grantor.  The  mortgagor  having  entered,  and  the  con- 
veyance containing  covenants  of  warranty ;  held,  the  facts 
furnished  no  defence  to  a  bill  for  foreclosure,  and  that  there 
should  be  a  decree  for  a  sale  of  the  mortgaged  premises, 
and  an  execution  against  the  defendants  for  any  deficit  there 
might  be  after  the  sale.  Bronson,  J.,  says :  "  No  one  has 
brought  any  suit  to  question  Varick's  title,  and,  as  far  as  we 
can  know  now,  none  will  ever  be  brought.  But  should  he 
ever  be  disturbed,  he  has  an  ample  remedy  on  the  covenants 
in  the  deed.  More  than  that,  he  might  have  sued  before  this 
time,  and  may  still  wsue  when  he  pleases,  on  the  covenant 
of  seisin.  If  there  was  a  serious  question  about  the  title, 
and  a  suit  had  actually  been  commenced  to  recover  a  por- 
tion of  the  land.  Chancery  might  enjoin  the  respondents  from 
proceeding  at  law  to  collect  the  whole  amount  of  the  mort- 
gage debt,  until  the  title  had  been  tried  ;  ^  and  in  such  a 
case,  where  the  proceedings  to  collect  the  mortgage  debt  are 
commenced  in  Chancery,  that  Court  might  perhaps  stay  the 
foreclosure  suit,  until  there  had  been  a  trial  at  law.  But 
it  is  no  answer  to  say,  peradventure  the  title  may  fail,  and 
thus  call  on  a  court  of  equity  to  try,  in  this  collateral  man- 

1  Natchez   v.   Minor,  9   Sra.   &   M.        ^  Bauks   v.  Walker,  2   Sandf.    Ch. 
544.  344. 

^  Jolinson  V.  Gere,  2  Johns.  Ch.  546. 


CU.   XX,]        VOID,   ETC.   MORTGAGES.  — CONSIDEIUTION.  615 

ner,  and  without  the  proper  parties,  a  question  whicli  j)r()p- 
erly  belongs  to  a  court  of  law.      If  the  purehaser  has  not 
been  ousted,  he  must  pay  the  mortgage  debt,  and  take  his 
remedy  on  the  covenants.     The  fact  that  there  may  now  be 
a  decree  in  personam,  as  to  any  balance  which  may  remain 
after  a  sale  under  the  mortgage,  does  not  alter  the  princi- 
ple." 1      So,  in  a  bill  to  foreclose  a  mortgage,  no  question 
was  made  by  the  defendant,  as  to  the  complainant's  right  to 
a  decree  for  a  sale  of  the  mortgaged  premises,  and  payment 
of  the  debt    and   costs  ont  of  the  proceeds,  as  far  as  the 
same  would  go.     But  the  answer  showed,  that  the  defend- 
ant gave  the  bond   and  mortgage  in  part  payment  of  the 
purchase-money  for  a  number  of  lots,  including  those  mort- 
gaged ;  that  the  grantor  had  no  title,  and  under  the  deed  to 
him  he  had  none,  to  four  of  the  lots  embraced  in  the  deed 
and  mortgage.     But  the  answer  was  silent  about  the  posses- 
sion of  the  four  lots  ;  and  whether  it  was  or  ever  had  been  in 
the  defendant ;  or  whether  the  possession  was  held  adversely 
under  title  paramount,  or  what  that  title  was;  resting  on  the 
broad  assertion  that  "  the  deed,  &c.,  had  conveyed  no  right, 
title,  or  estate,  or  interest  whatsoever,  in  or  to  the  said  four 
lots,"  and  claiming,  upon  this  ground,  that  the  mortgagee 
should   not   have  a  decree   over  against  the  mortgagor  for 
any  deficiency,  (according  to  the  statutory  provision  in  New 
York).     Held,  upon  this  answer,  the  Court  was  not  bound 
to  decree  the  defendant  exonerated  even  pro  tanto  from  the 
mortgage  debt,  but,  in  order  to  obtain  such  decree,  the  de- 
fendant should  file  a  bill ;  but  further,  that  there  was  enough 
disclosed  in  the  answer  to  warrant  the  Court  in  withholding 
the  personal  decree,  and  leaving  the  plaintiff  to  sue  at  law 
upon  the  bond,  and  also  to  file  a  bill  for  relief.     Decree  for 
foreclosure  and  sale,  but  with  liberty  to  sue  at  law  for  any 
balance.^     So  A.,  being  assignee  of  a  mortgage  for  the  pur- 
chase-money of  a  large  tract  of  land,  took  a  mortgage  from 
B.,  the  holder  of  a  portion  of  the  land,  for  his  ratable  pro- 

1  Edwards  v.  Bodine,  26  Wend.  109,         -  Witliers  v.  Morrcll,  U  Edw.  5G0. 
113,  114. 


616  THE    LAW    OF   MORTGAGES.  [CH.   XX. 

portion  of  the  original  mortgage  debt,  all  the  parties  having 
notice  of  a  claim  of  a  paramount  title  in  the  State.  The 
several  holders  of  the  land,  covered  by  the  original  mortgage, 
subsequently  petitioned  the  State  for  relief  against  the  State 
claim,  alleging  that  they  had  satisfied  the  original  mort- 
gage, and  obtained  a  release  from  the  State,  at  a  price  re- 
duced on  account  of  the  alleged  satisfaction  of  the  mortgage. 
Held,  B.  could  not  afterwards  resist  the  demand  of  payment 
of  the  substituted  mortgage,  especially  as  against  a  bond  fide 
assignee  of  such  mortgage.^  So,  in  Piatt  v.  Gilchrist,^  a 
mortgage  was  given  for  the  purchase-money  of  land  con- 
veyed with  warranty.  The  answer  to  a  bill  for  foreclosure 
alleged,  that  a  suit  had  been  brought  by  parties  claiming  the 
land  under  a  paramount  titlfe,  and  prayed  that  the  foreclos- 
ure and  sale  might  be  deferred  till  this  suit  should  have  been 
determined.  Held,  although  after  eviction  relief  would  be 
granted,  to  prevent  circuity  of  action,  until  such  eviction  the 
Court  could  not  interfere.  Mason,  J.,  says :  "  The  purchaser 
in  this  case  promised  to  pay  the  purchase-money  at  stipu- 
lated periods,  and  the  seller  covenanted,  that  if  at  any  time 
the  title  should  fail,  and  the  purchaser  be  evicted  by  a  par- 
amount title,  he  would  refund  the  purchase-money  with 
interest.  The  possibility  that  the  title  might  fail,  and  the 
purchaser  be  evicted,  was  in  the  minds  of  the  parties.  They 
might  also  have  provided,  that  in  case  of  a  claim  being 
made  by  title  paramount  before  actual  payment  of  the  con- 
sideration-money, the  right  of  the  vendor  to  call  for  its  pay- 
ment should  be  suspended.  But  this  they  have  not  thought 
proper  to  do,  and  this  Court  can  with  no  more  propriety  add 
such  a  clause  to  the  contract,  and  suspend  the  collection  of 
the  purchase-money,  than  it  can  suspend  the  cdllection  of 
rent  expressly  covenanted  to  be  paid,  upon  the  destruction 
of  the  buildings,  where  the  parties  have  not  themselves  pro- 
vided against  it." 

14.   More  especially,  where  land  is  sold  at  auction,  and 

1  Lee  V.  Porter,  5  Johns.  Ch.  268.  -  8  N.  Y.  Leg.  Observ.  7 ;  ace.  Mc 

Lemore  v.  Mabson,  20  Ala.  137. 


CH.    XX.J        VOID,    ETC.    MORTGAGES. CONSIDERATION.  017 

conveyed  without  warranty,  and  at  the  risk  of  tlie  purchaser, 
and  a  bond  and  mortgage  given  for  the  price,  part  failure  of 
title  is  no  defence  to  a  suit  for  foreclosure,  if  there  was  no 
fraud  or  misrepresentation  on  the  part  of  the  mortgagee.^ 
So,  where  a  purchaser  has  notice  of  an  outstanding  claim  of 
title,  and  takes  a  deed  with  general  warranty,  he  cannot  set 
up  that  title  as  a  defence  to  an  action  on  a  mortgage  for  the 
purchase-money,  when  his  possession  has  not  been  disturbed; 
though  he  was  misled  as  to  the  nature  of  the  adverse  title 
by  a  statement  of  the  vendor's  agent.^  And,  in  a  suit  for 
foreclosure,  a  defence  of  undue  influence  and  misapprehension 
of  title,  was  held  insufficient.^ 

15.  In  one  of  the  latest  cases  on  this  subject,  where  a  mort- 
gage was  executed  to  secure  two  notes,  given  in  part  consid- 
eration for  two  tracts  of  land,  and  a  complaint  was  made  to 
foreclose,  ^600  being  due;  an  answer,  that  as  to  one  of  the 
tracts,  the  grantors  never  had  any  title,  and  therefore  the 
consideration  as  to  that  tract  (alleged,  by  a  species  of  vide- 
licet, to  be  worth  $3,000)  had  failed,  was,  on  demurrer,  held 
sufficient.'* 

16.  And  actual  eviction  is  a  good  defence  to  a  mortgage. 
Thus,  in  1814,  the  plaintiff  conveyed  to  the  defendant,  taking 
back  a  mortgage  to  secure  the  purchase-money.  In  1824,  a 
third  person  brought  a  suit  for  the  land,  of  which  the  plain- 
tiff had  notice,  and  promised  to  defend,  but  judgment  was 
rendered  by  default.  In  1826,  a  writ  of  possession  issued, 
of  which  the  agent  of  the  plaintiff  had  notice.  In  1830, 
the  defendant  took  a  lease  of  the  land  from  the  plaintiff  in 
the  former  suit,  and  continued  to  hold  under  him  till  1845. 
In  an  action  on  the  mortgage,  held,  the  plaintiff  must  show 
title  in  himself,  and  that  the  defendant  might  set  up  a  failure 
of  consideration  of  the  mortgage,  notwithstanding  his  con- 

fj    tinuing  in  possession.^ 

1  Banks  v.  Waller,  3  Barb.  Cli.  438.        *  Conklin  v.  Bowman,  7  In<l.  533. 

2  Bradford  v.  Potts,  9  Barr,  37.  ^  PoyntncU  v.  Spencer,  G  Barr,  254. 
°  Wooden  v.  Haviland,  18  Conn.  101. 

52* 


618 


THE   LAAV    OF   MORTGAGES. 


[cn.  XXI. 


CHAPTER  XXI. 

VOID  AND  VOIDABLE  MORTGAGES.  FRAUD  BETWEEN  THE  PAR- 
TIES AND  IN  RELATION  TO  CREDITORS.  FRAUD  ON  THE  PART 
OF  A  MORTGAGEE  )  EFFECT  UPON  SUBSEQUENT  INCUMBRAN- 
CERS. 


1.  Fraud  between  the  parties. 

6.  Fraud  as  to  creditors,  &c. 

16.  Fraudulent  concealment  or  mis- 
representation of  title  by  a  mortgagee ; 
cflfect  upon  subsequ-ent  incumbrances  ; 
attestation  by  him  of  a  subsequent 
deed ;  delivery  of  title-deeds  to  the 
mortgagor,  &c. ;  estoppel. 


31.  Limitations   and   restrictions  of 
the  rule  above  stated. 

40.  Mortgage  from  client  to   attor- 
ney. 

41.  Mortgage  of  an  infant. 

43.  Mortgage  in  reference  to  bank- 
rupt, &c.,  laws. 


1.  Fraud  avoids  mortgages,  as  well  as  other  securities  and 
transfers ;  and,  as  in  other  cases,  may  exist  between  the  par- 
ties, or  only  in  reference  to  creditors,  (a) 

2.  Fraud  in  procuring  a  note  and  mortgage  may  be  set  up 


(a)  Where  a  statute  prohibits  loans  from  a  corporation  except  to  mem- 
bers ;  in  an  action  to  foreclose  a  mortgage  made  to  the  company  to  secure  a 
bond,  which  recites  that  the  defendant  is  a  member,  he  is  estopped  to  deny 
such  recital,  unless  it  be  shown  that  the  securities  were  given  to  evade  the 
statute.     Howard,  &c.  v.  M'Intyre,  3  Allen,  571. 

The  same  rules  are  applied  to  a  mortgage  as  to  an  absolute  deed,  in  refer- 
ence to  fraud  against  creditors.     Webb's,  &c.  v.  Roff,  9  Ohio  St.  433. 

In  New  Jersey,  a  mortgage  made  aftei-  arrest  of  the  morfgac/or  is  void. 
Rev.  Stat.  324.  See  Cook  v.  Colyer,  2  B.  Monr.  72  ;  Wooden  v.  Haviland, 
18  Conn.  101. 

In  Pennsylvania,  where  the  signature  of  a  recorded  mortgage  is  alleged 
to  be  a  forgery,  the  mortgagor,  his  representatives,  or  the  owner  of  the 
premises,  or  any  or  either  of  them,  may  by  petition  to  the  Court  of  Common 
Pleas  of  the  county  where  the  mortgaged  premises  are  situate,  after  suitable 
notice,  and  proof  of  the  alleged  forgery,  have  such  mortgage  cancelled  on 
the  record.     Laws  of  Pa.  1862,  p.  192. 

In  Wisconsin,  in  all  suits  to  enforce  notes,  or  to  foreclose  mortgages,  given 


CH.  XXI.]      VOID    AND    VOIDABLE    MORTGAGES. FRAUD.  019 

against  an  assignee.^     But  equity  will  not  relieve  a  mort- 
gagor Viiio  has  himself  been  accessory  to  a  fraud.^ 

3.  A  bill  in  equity  lies  to  set  aside  a  fraudulent  mortgage, 
though  the  plaintiff  is  in  possession,  and  might  maintain  such 
possession  against  the  mortgagee,  at  law.'^  Upon  this  subject 
Judge  Story  says:*  "It  is  objected,  that  the  bill  asserts,  that 
the  title  of  the  defendant  being  fraudulent  is  ipso  facto  void  ; 
and  therefore  his  remedy  is  at  law  ;  and  he  has  no  standing  in 
a  court  of  equity.  But  a  court  of  equity  has  a  clear  concurrent 
jurisdiction  with  courts  of  law  in  cases  of  fraud.  Besides  ; 
here  the  bill  goes  for  a  discovery,  and  other  equitable  relief, 
which  cannot  be  obtained  by  a  suit  at  law.  The  plaintiff  is 
in  possession,  and  cannot  sue  at  law.  His  only  remedy  is  in 
equity.  He  seeks  to  remove  out  of  his  way  a  title,  fraudulent 
in  its  nature,  which  obstructs  his  own  title ;  and  he  seeks  a 
declaration  from  the  Court,  that  it  is  fraudulent,  and  that  the 
fraudulent  party  shall  execute  a  release."  (b)     And  in  a  bill 

1  Marshall  v.  Billingsbv,  7  Ind.  250.         *  Briggs  v.  French,  1   Sumn.  505, 

2  Wilson  V.  Watts,  9  Md.  836.  506. 
s  Marston  v.  Brackett,  9  N.  H.  337. 


to  secure  the  payment  of  notes,  the  maker  may  set  up  by  plea  or  answer, 
that  the  note  or  mortgage  was  obtained  by  fraud  or  false  representations. 
In  case  of  mortgages,  commonly  called  farm  mortgages,  to  railroad  or  other 
incorporated  companies,  intended  as  the  basis  of  credit,  or  in  exchange  for 
stock,  all  the  written  contracts  between  the  company  and  the  mortgagor 
connected  with  or  referring  to  the  making  of  the  note  or  mortgage,  and  any 
fraudulent,  false,  or  untrue  statements  relating  to  the  pecuniary  circum- 
stances of  such  company,  the  route  of  the  road  or  time  of  completion,  shall 
be  taken  as  part  of  the  contract,  run  with  the  note  and  mortgage,  and  be 
obligatory  on  the  contracting  parties,  and  the  assignees  of  the  note  and  mort- 
gage. Such  assignee  shall  not  be  allowed  to  claim  as  an  innocent  purchaser 
without  notice.     Laws  of  Wisconsin,  1858,  p.  46. 

(b)  For  a  similar  ruling  in  regard  to  equity  juri.-diction  of  a  ttsurinus 
mortgage,  see  Williams  v.  Ayrault,  31  Barb.  364.  But  in  a  late  case  the 
distinction  is  taken,  that  a  party  to  a  mortgage  cannot  set  up  a  defence  of 
this  nature.  The  Court  remark:  "  The  position  then  is  this,  — that  parties 
to  a  mortgage,  made  for  the  purpose  of  defrauding  third  persons,  may,  as 
between  themselves,  show  the  intended  fraud,  to  make  void  the  mortgage. 


620  THE    LAW    OF   MtDRTGAGES.  [CH.    XXI. 

for  discovery,  and  to  set  aside  a  mortgage,  which  the  plain- 
tiff alleges  was  taken  by  the  defendant  with  intent  to  defraud 
the  plaintiff,  the  defendant  cannot,  by  demurring,  avoid  an- 
swering, and  disclosing  when  the  mortgage  was  made,  or 
whether  he  claims  to  hold  under  it ;  or  disclosing,  and  if  in 
his  power  producing,  the  mortgage  note ;  or  stating  when, 
where,  in  whose  presence,  and  for  what  it  was  given,  or  from 
whom  the  consideration  was  received,  and  to  whom  paid.^ 
So  a  bill  in  equity  lies,  to  compel  a  fraudulent  mortgagee  to 
transfer  the  mortgage  to  the  assignee  in  insolvency  of  the 
mortgagor ;  the  equity  of  redemption  having  been  sold  on 
execution.  In  such  case,  the  mortgage  is  be  regarded  as 
made  in  trust  for  the  creditors  of  the  mortgagor.  It  is  void 
only  as  to  the  mortgagee,  but  valid  as  against  the  owner  of 
the  equity  of  redemption.^    ^ 

4.  But  equity  will  not  relieve  a  mortgagor  who  has  him- 
self been  accessory  to  a  fraud.^  So  fraud  in  procuring  a 
mortgage  is  no  defence  to  a  bill  for  foreclosure,  unless  com- 
mitted by  the  mortgagee  or  his  agents,  or  with  his  knowledge 
at  the  time  of  taking  the  mortgage.  The  answer  must  dis- 
tinctly state  the  facts  which  constitute  the  fraud,  and  charge 
the  mortgagee  with  notice  of  it.*  And  under  a  statute, 
which  provides  that  one  claiming  a  title  to  real  property,  and 
in  possession  thereof,  may  file  a  bill  in  equity,  for  the  pur- 
pose of  compelling  an  adverse  claimant  to  bring  an  action 
and  try  his  right;  the  holder  of  a  mortgage,  duly  recorded, 

1  Burns  v.  Hobbs,  29  Maine,  273.  s  Wilson  v.  Watts,  9  Md.  336. 

2  Biirthoiemew  v.  M'Kiustry,  2  Al-        *  Aikin  v.  Morris,  2  Barb.  Cii.  140. 
len,  448. 


It  is  manifest  that  such  a  position  cannot  be  maintained."  Per  Eastman,  J. 
Blalce  V.  Williams,  36  N.  H.  42.  Hence,  where  A.  made  two  mortgages  to 
B.,  the  former  of  which  was  assigned  to  C,  the  latter  to  D. ;  and  D.  brings  a 
bill  in  equity  against  the  holders  of  the  first  mortgage  and  of  the  equity  of 
redemption,  to  foreclose  the  latter,  and  obtain  an  account  of  the  former: 
held,  it  could  not  be  shown  in  defence,  that  D.'s  mortgage  was  made  to  de- 
fraud third  persons.     Ibid.  40. 


CH.  XXT.]      VOID   AND    VOIDABLE   MORTGAGES.  —  FRAUD.  G21 

will  not  be  ordered  by  the  Court  to  bring  an  action  for  the 
purpose  of  trying  his  title,  upon  the  petition  of  the  assignee 
in  insolvency  of  the  mortgagor.  The  Court  say  :  «  The 
petitioners,  if  they  deny  the  validity  of  the  mortgage  alto- 
gether, as  one  fraudulent  against  creditors,  can  bring  a  writ 
of  entry  themselves  to  try  the  title  ;  and  the  defendants  in 
their  plea  would  be  obliged  to  admit  or  deny  the  petitioners' 
title."  ^ 

5.  The  defence  of  fraud  cannot  be  twice  made  to  a  claim 
under  a  mortgage.  Thus,  in  ejectment  brought  by  a  mort- 
gagee, the  mortgagor  set  up  the  defence  of  false  representa- 
tions in  obtaining  the  mortgage  ;  but  judgment  was  recovered 
against  him,  and  the  land  sold  on  excution.  Held,  he  could 
not  make  the  same  defence  to  a  scire  facias? 

6.  Possession  after  the  law-day  raises  no  presumption  of 
fraud  against  creditors.-^  So  it  is  not  a  badge  of  fraud  in  a 
mortgage,  that  it  was  taken  after  the  creditor  knew  of  the 
debtor's  intention  to  mortgage  the  same  land  to  another  cred- 
itor.^ Nor  is  it  sufficient  proof  of  fraud,  that  a  mortgage  was 
made  by  a  debtor,  to  two  of  his  creditors,  of  property,  against 
which  he  knew  an  attachment  had  been  issued,  but  before  a 
levy.°  And  in  general  it  is  held,  that  a  debtor  may  give 
preference  in  a  mortgage  to  one  creditor  over  another,  or 
designate  the  order  in  which  the  debts  provided  for  shall  be 
paid  out  of  the  property.^  So  the  mortgagor  cannot  defend 
against  an  action  for  possession  by  the  mortgagee,  after 
breach,  on  the  ground  that  the  mortgage  was  made  to  de- 
fraud creditors  ;  as,  upon  breach,  the  legal  title  is  perfect  in 
the  mortgagee,  and  the  other  party  cannot  on  such  a  ground 
annul  an  executed  conveyance."  So,  where  a  son,  being  in- 
debted to  his  mother,  executed  to  her  a  mortgage  of  all  his 
property,  which  was  no  more  than  adequate  security,  at  her 

1  Dewey  v.  Bulkley,  1  Gray,  416,        '^  Kennaird  v.  Adams,  11  B.  Mon. 
417.  102. 

2  Lewis  V.  Menzel,  38  Penn.  222.  •*  Kobinson  v.  Collier,  11  B.  Mon. 

3  Steele  v.  Adams,  21  Ala.  534.  32 ;  Solomon  v.  Sparks,  2<  Geo.  3So. 

*  Craig   V.    Tappin,    2    Sandf.    Cb.         '  Brookover  v.  Hurst,  1  Met.  (Ivy.) 
78.  665  ;  7  Wis.  263. 


622  THE    LAW    OF   MORTGAGES.  [CH.  XXI. 

solicitation  :  held,  the  understanding  of  the  parties,  that  the 
mortgage  would  not  be  enforced,  did  not  avoid  it  as  to 
creditors.!  So,  where  a  surety  takes  from  his  principal  a 
mortgage  to  indemnify  him,  and  joins  with  the  principal  in  a 
bond  for  the  prosecution  of  a  writ  of  error,  on  a  several  judg- 
ment against  the  mortgagor,  on  the  debt  for  which  the  mort- 
gagee is  surety ;  the  validity  of  the  mortgage  will  not  thereby 
be  afFected.2  And  a  mortgage  to  secure  the  debt  of  another  is 
not  per  se  fraudulent  against  creditors.  Such  mortgage  is 
distinguishable  from  a  voluntary  conveyance  or  deed  of  gift, 
without  consideration.  In  this  case,  the  grantor  finally  parts 
with  his  property,  and  it  is  alienated  as  well  from  his  credit- 
ors as  himself.  In  the  other  it  is  a  pledge  only,  perhaps  for 
a  small  amount,  and  the  grantor's  estate  is  not  devested. 
Moreover,  a  conveyance  is  not  in  law  fraudulent,  without  a 
fraudulent  intent  in  both  parties.  In  a  voluntary,  absolute 
deed,  both  of  course  know  the  want  of  consideration  ;  and 
from  this  a  fraudulent  intent  must  necessarily  be  inferred, 
if  the  grantor  is  at  the  time  indebted.  But  a  mortgage  to 
secure  the  debt  of  another  is  not  voluntary.^ 

7.  But  an  oral  promise  by  a  mortgagee  to  creditors  of 
the  mortgagor,  to  relinquish  his  claim  to  the  land,  if  they 
will  take  from  the  mortgagor  another  mortgage,  and  extend 
the  time  of  payment,  is  presumptive  evidence  of  fraud  in 
the  existing  mortgage.^  So  a  mortgage  to  a  creditor  of  prop- 
erty to  an  unnecessary  amount,  and  leaving  nothing  to  satisfy 
a  decree  which  was  shortly  expected  to  be  rendered  against 
the  mortgagor ;  is  fraudulent  and  void.^ 

8.  Where  one  conveys  absolutely,  to  protect  the  property 
from  his  creditors,  with  a  private  agreement  reserving  a  title 
to  himself;  neither  he  nor  his  administrator  can  claim  relief 
in  equity .*" 

9.  Where  there  was  a  fraudulent  conveyance,  with  a  mort- 

1  Maples  V.  Maples,  Kice,  Ch.  300.  *  Parker  v.  Barker,  2  Met.  423. 

2  Stover  V.  Herrington,  7  Ala.  142.  ^  Thompson  v.  Drake,  3  B.   Men. 
8  Marden   v.   Babcock,    2   Met.    99,     565. 

104,  105;  Hearn,  1  Buck's  Bankr.  C.        ^  Arnold  v.  Mattison,  3  Rich.  Eq. 
165.  158. 


CH.  XXI.]      VOID    AND    VOIDABLE    MORTGAGES. FRAUD.  G23 

gage  back  to  secure  the  price,  and  the  mortgagee  assigned 
the  notes  and  mortgage,  and  the  mortgagor  also  transferred 
his  title  :  held,  the  assignees  of  both  parties  succeeded  to  the 
rights  of  their  assignors  ;  that  the  purchaser  of  the  equity  of 
redemption  might  redeem,  but  could  not,  as  a  creditor,  ob- 
ject to  the  title  of  the  assignee  of  the  mortgage.^ 

10.  A  mortgage,  given  by  a  fraudulent  grantor  to  a  judg- 
ment creditor,  is  good  against  him  and  all  claiming  under 
him.  Also  against  a  creditor,  who  has  had  the  assignment 
set  aside,  but  who  had  gained  no  lien  prior  to  the  mortgage.^ 

11.  Where  a  mortgage  is  made  to  the  mortgagee  as  trus- 
tee, who  brings  a  bill  for  foreclosure  ;  the  mortgagor  cannot 
set  up  as  a  defence  the  legal  invalidity  of  the  trust.  The 
Court  say :  "  He  (the  defendant)  and  those  claiming  under 
him  can  be  in  no  danger  of  being  made  liable  to  pay  the 
bond  and  mortgage  or  the  purchase-money  a  second  time,  if 
they  should  now  pay  or  suffer  the  property  to  be  sold  in  pay- 
ment and  satisfaction  of  the  lien  upon  it."^ 

12.  In  Connecticut,  in  the  case  of  Palmer  v.  Mead,^  con- 
trary to  the  general  doctrine,  it  was  held,  that,  upon  a  bill 
for  foreclosure,  the  title  of  the  mortgagee  cannot  be  inquired 
into.  Hence,  where  attaching  creditors  of  the  mortgagor, 
after  production  of  the  note  and  mortgage,  set  up  as  a  de- 
fence to  such  bill  that  the  mortgage  was  fraudulent  and  void 
against  creditors ;  it  was  held  that  such  evidence  was  incom- 
petent. The  Court  remarked,  that,  if  the  title  to  land  might 
be  brought  in  question,  the  process  was  local ;  whereas,  by 
the  established  law,  a  bill  for  foreclosure  need  not  be  brought 
in  the  county  where  the  land  lies.  In  such  bill  it  is  sufficient 
to  aver,  that  the  defendant  executed  a  deed  on  condition  ; 
and  of  course  any  circumstances  showing  the  instrument  to 
be  no  deed,  such  as  forgery,  want  of  witnesses,  diu-ess,  fraud, 
coverture,  &c.,  may  be  shown  in  defence ;  but  not  circum- 
stances merely  impairing  its  effect.    ( Two  Justices  dissented.) 

1  Sprasue    v.    Graham,    29    Maine,        ■'  Schenck   r.  Ellingwooa,   3   Edw. 
160.  175,  177. 

-  Fox  V.  Clark,  Walk.  Ch.  535.  *  7  Conn.  149. 


624  THE   LAW   OF   MORTGAGES.  [CH.  XXI. 

13.  Mortgage,  to  secure  a  note  made  without  consideration, 
for  the  purpose  of  defrauding  creditors,  the  mortgage  being 
duly  recorded.  The  mortgagee  afterwards  delivered  up  the 
note  to  be  cancelled,  and  the  mortgagor  then  conveyed  to  a 
bond  fide  purchaser.  Subsequently,  the  mortgagee  procured 
a  new  note,  like  the  former  one,  and  attempted  to  claim 
under  the  mortgage.  Upon  a  bill  in  equity  filed  by  the  pur- 
chaser ;  held,  he  was  entitled  to  a  release  of  the  mortgagee's 
pretended  title ;  that  the  case  did  not  fall  within  the  princi- 
ple, that  a  bond  fide  purchaser  without  notice  cannot  main- 
tain a  bill  for  relief,  although  he  have  a  good  equitable  de- 
fence, the  parties  in  this  case  not  having  equal  equities ;  nor 
within  the  principle,  that  a  subsequent  purchaser  with  notice 
is  not  entitled  to  dispute  a  prior  conveyance.^  So,  upon  a 
bill  to  redeem  brought  by  a  subsequent  against  a  prior  mort- 
gagee, it  is  held  that,  although  the  latter  cannot  defend,  upon 
the  ground  that  the  second  mortgage  is  fraudulent  as  against 
creditors,  being  neither  a  creditor  himself,  nor  standing  in 
such  a  relation  as  to  defend  in  behalf  of  any  creditor ;  yet, 
as  showing  the  intention  of  certain  acts,  and  in  connection 
with  an  alleged  want  of  delivery  of  the  deed,  the  evidence  is 
admissible.^  And  it  is  elsewhere  decided,  that  a  first  mort- 
gagee may  take  advantage  of  a  fraud  against  creditors  in  a 
subsequent  mortgage.^  So  a  purchaser  under  a  decree  of 
sale,  in  a  proceeding  to  foreclose  the  first  mortgage,  may 
impeach  a  subsequent  mortgage,  as  fraudulent  against  cred- 
itors.^ 

14.  Whether  the  consideration  of  a  mortgage  is  bond  fide, 
or  merely  colorable  to  defraud  creditors,  or  so  inadequate  as 
to  constitute  a  badge  of  fraud,  is  a  question  of  fact  which 
should  be  left  to  the  jury,  upon  the  whole  evidence,  without 
any  restriction  on  the  part  of  the  Court,  as  to  the  necessity 
of  proving  all  the  items  of  indebtedness  alleged.^ 

15.  The  declarations  of  a  mortgagor,  as  to  his  intention 

1  Marston  v.  Brackett,  9  N.  H.  337.  *  Ibid. 

2  Powers  V.  Russell,  13  Pick.  69.  ^  Williams  v.  Kelsev,  6  Geo.  365. 

3  Sliiveley  v.  Jones,  6  B.  Men.  274. 


CH.  XXI.]       VOID    AND    VOIDABLE    MORTGAGES FRAUD.  625 

in  executing  the  mortgage,  are  not  admissible  to  impeach 
the  title  of  the  mortgagee,  by  showing  fraud,  unless  they 
were  brought  to  his  knowledge  prior  to  the  execution  of  the 
mortgage.^ 

16.  Another  species  of  fraud,  aflecting  the  validity  of  a 
mortgage  in  reference  to  third  persons,  consists  in  misrepre- 
sentation or  concealment,  on  the  part  of  the  mortgagee,  with 
respect  to  his  incumbrance,  whereby  a  stranger  is  induced 
to  purchase  or  make  advances  upon  the  land.  Various 
maxims  have  been  employed  to  express  the  rule  of  law  upon 
this  subject.  "  Qui  facet,  consentire  videtur.  Qui  potest  et 
debet  vetare,  jubet."  If  a  person  maintains  silence,  when 
in  conscience  he  ought  to  speak,  equity  will  debar  him  from 
speaking  when  conscience  requires  him  to  be  silent.  It  is  a 
fraud  to  conceal  a  fraud.  So,  it  is  said,  this  rule  rests  rather 
on  the  tendency  of  such  conduct  to  mislead,  than  on  any 
deceit  actually  intended  or  actually  practised  in  each  case. 
So,  also,  that  where  one  by  his  words  or  conduct  wilfully 
causes  another  to  believe  the  existence  of  a  certain  state  of 
things*,  and  induces  him  to  act  on  that  belief,  so  as  to  alter 
his  own  previous  position,  the  former  is  concluded  from  aver- 
ring against  the  latter  a  different  state  of  things  as  existing 
at  the  same  time  ;  and  that  a  party  who  negligently  or  cul- 
pably stands  by,  and  allows  another  to  contract  on  the  faith 
and  understanding  of  a  fact  which  he  can  contradict,  cannot 
afterwards  dispute  that  fact  in  an  action  against  the  person 
whom  he  has  himself  assisted  in  deceiving,  (c) 

1  Prior  V.  White,  12  111.  261. 


(c)  Upon  the  principle  stated  in  the  text,  a  mortgagee,  without  notice  of 
an  outstanding  equitable  title,  in  one  who  encourages  him  to  take  the  mort- 
gage, cr  stands  by  and  makes  no  objection,  will  be  protected  against  it. 
Green  v.  Price,  1  Munf.  449. 

Upon  a  similar  principle,  the  discharge  of  a  mortgage,  accompanied  by  a 
representation  that  it  was  paid,  is  sometimes  construed  as  an  assignment. 
Wilson  V.  Kimball,  7  Fost.  300. 

VOL.  I.  53 


626  '     THE    LAW    OF    MORTGAGES.  [CH.  XXL 

17.  It  is  held  to  be  no  answer  to  this  objection,  that  the 
incun:ibrance  was  concealed  from  prudential  motives,  or  a 
mistaken  sense  of  duty  to  the  party's  employer.  Nor  that 
the  misrepresentation  occurred  through  ignorance  or  inatten- 
tion, if  an  innocent  purchaser  was  thereby  prejudiced.^ 

18.  Frauds  of  this  nature  constitute  a  frequent  subject  of 
equity  jurisdiction.  And  a  court  of  chancery,  in  such  case, 
will  not  only  refuse  its  aid  to  enforce  the  mortgage,  but, 
upon  a  bill  by  the  party  injured  to  quiet  his  title,  will  decree 
a  perpetual  injunction  against  enforcing  the  mortgage,  de- 
clare it  void,  or  order  a  release  or  reconveyance.^ 

19.  But,  as  will  appear  from  some  of  the  cases  hereafter 
cited,  courts  of  law  have  often  recognized  and  acted  upon 
the  same  principle. 

20.  Examples  of  estoppel,  arising  from  actual  misrepre- 
sentation, are  where  a  claimant  of  land  in  a  suit  at  law  is 
shown  to  have  stood  by,  knowing  that  another  person  was 
about  to  convey  it,  and  declared  that  he  had  conveyed  his 
interest  to  such  person.^  So  A.  sold  land  to  B.,  B.  to  C,  and 
C  to  D.  B.  sued  C.  for  the  use  of  A.,  on  a  note  given  for 
the  purchase-money,  at  the  sale  from  B.  to  C,  and  made  D. 
a  party,  praying  for  the  enforcement  of  the  vendor's  lien.  It 
was  shown  that  A.,  after  he  sold  the  land,  pointed  it  out  to 
the  sheriff  as  his  property,  and  it  was  sold  as  such  on  an  exe- 
cution against  him.  The  title  acquired  at  this  sale  was  after- 
wards conveyed  to  D.  Held,  the  vendor's  lien  could  not  be 
enforced  for  the  benefit  of  A.*  So  A.  executed  mortgage 
deeds  of  the  same  land,  on  the  same  day,  to  B,  and  C. ;  and 
C.  afterwards  assigned  his  interest  to  D.  E.,  having  attached 
the  premises  as  the  property  of  C,  and  recovered  judgment 
against  him,  sent  an  agent  to  D.,  who  had  knowledge  of  such 
judgment,  to  inquire  whether  there  was  any  priority  in  the 

1  Ibbotson  V.  Rhodes,  2  Vern.  554;  474;  Gregg  v.  Wells,  10  Ibi(i*97,  98; 

Coote,  485;  Otis  v.  Sill,  8  Barb.  102;  Durham  v.  Alden,  2  Appl.  228. 

Hall  t^.  Fisher,  9  Ibid.    17;    1    Story,  ^  See  1  Hill.  Real  Prop.  452;  Law- 

Equ.  §  390;   L/'Amoreux   i;.  Vanden-  rence  v.  Delano,  3  Sandf.  333;  Grace 

burgh,  7  Paige,  321;  Shepley  y.  Range-  v.  Mercer,  10  B.  Mon.  157. 

ley,  1  W.  &  Min.  217  ;  per  Ld.  Den-  ^  Barnard  v.  Pope,  14  Mass.  437. 

man,  Pickard  v.  Sears,  6  Ad.  &  Ell.  *  McCown  v.  Jones,  14  Tex.  682. 


CH.  XXr.J      VOID    AND    VOIDABLE   MORTGAGES.  —  FRAUD.  (527 

deed  under  which  he  claimed  ;  to  which  D.  replied,  «  There 
was    not ; "   that  "  both  deeds  were  delivered  at  the  same 
time  ; "  and  that  "  B.  had  given  a  writing  to  that  effect."    E. 
thereupon  took  a  mortgage  of  the  premises  from  C.  to  secure 
his  debt ;  C.  being,  at  this  time,  insolvent.     D.'s  representa- 
tion, however,  was  not  true ;  the  deed  to  B.  having  been,  in 
fact,  delivered  first.     On  a  bill  of  foreclosure,  brought  by  D. 
against  E.,  it  was  held,  that  the  plaintiff'  was  precluded,  !)y 
.these  facts,  from  claiming  a  priority  of  title.i     So,  where  one 
having  a  mortgage  upon  the  property  of  his  son  encouraged 
a  third  person  to  purchase  the  property,  promising  to  abide 
by  any  agreement  which  the  son  might  make  concerning  the 
mortgage  ;  and  the  son  delivered  the  mortgage  to  the  pur- 
chaser, but  it  was  redelivered  to  the  father  for  the  purpose  of 
having  it  discharged  :  held,  the  mortgage  could  not  be  en- 
forced?    So  one  co-tenant,  owing  one  eighth  of  the  land,  and 
holding  a   mortgage  on  the  other  seven  eighths,  joined  the 
other  in  a  conveyance  of  the  whole,  the  terms  being  as  fol- 
lows :  —  "Do  hereby  -give,  &c.,  that  is  to  say,  the  said,  &c., 
does  hereby  give,  &c.  seven  eighth  parts,  and  the  said,  &c. 
one  eighth  part  of  the  following  piece,  &c.     And  we  do  cov- 
enant, &c.  that  we  are  lawfully  seised,  &c. ;  that  they  are 
free  of  incumbrances,  and  that  we  have  good  right  to  sell, 
&c.  in  the.  aforesaid  proportions."     The  mortgagee  did  not 
disclose   his   mortgage   to  the   purchaser.     Held,   an   action 
could  not  be  maintained  upon  the  mortgage.^     Shepley,  J., 
says :  —  "  Admitting   the  covenants  to  be   several  and   not 
joint,  the  effect  of  this  transaction  is,  that  the  demandant 
knowingly  becomes  a  party  to  the  most  solemn  assurance 
made  by  his  mortgagor  under  his  hand  and  seal,  that  the 
seven  eighths  '  are  free  of  all  incumbrances,'  and  that  '  he 
has  good  right  to  sell  and  convey  the  same.'     And  he  does 
this,  while   he  held  a  mortgage  covering  the  premises,  on 
which  was  due  more  than  double  the  amount  of  the  pur- 
chase-money, without  causing  any  exception  of  his  own  title 

1  Broome  v.  Beers,  6  Conn.  198.  "  Durham  v.  Alclcn,  2  Appl.  228. 

2  Curtiss  V.  Tripp,  1  Clark,  318. 


628  THE    LAW    OF   MORTGAGES.  [cil.  XXI. 

to  be  introduced.  He  is  as  much  bound  by  the  declarations 
of  his  mortgagor  as  if  they  were  his  own.  It  would  be  a 
fraud  upon  the  purchaser  to  permit  him  now  to  disturb  that 
title."  So  a  mortgagee  promised  by  a  writing  not  under  seal 
to  extend  the  time  of  payment ;  and  a  third  person  in  con- 
sequence bought  the  estate  from  the  mortgagor.  Held,  the 
mortgagee  was  bound  by  his  promise,  and  could  not  main- 
tain scire  facias  upon  the  mortgage,  until  the  time  of  such 
extension  had  expired.^  Huston,  J.,  says:^  —  "Whether 
such  a  paper  given  to  the  debtor  would  have  been  binding, 
is  not  the  question,  though  if  a  mortgagee  gives  a  writing  to 
his  mortgagor  that  he  will  accept  a  debt  presently  due,  if 
paid  in  instalments  at  specified  times,  and  receives  one  or 
more  of  them  as  they  fall  due,  it  may  in  some  instances  be 
a  great  fraud  to  afterwards  proceed  before  the  other  instal- 
ments fall  due  ;  and  I  am  not  prepared  to  say  that  it  would 
under  all  circumstances  be  void ;  but  that  is  not  this  case. 
It  is  not  fair  nor  honest  to  make  a  promise  which  induces  a 
man,  a  stranger  to  the  party,  to  pay  his  goods  and  give  his 
labor  to  exchange  his  own  property  for  an  incumbered  prop- 
erty, on  a  promise  not  to  press  the  incumbrance,  and  then 
say,  I  make  nothing  by  the  indulgence  which  I  promised 
you,  and  I  will  not  meet  my  promise.  True,  the  mortgage 
was  a  deed  under  seal,  and  this  not  under  seal,  but  it  was, 
though  informal,  enough  to  induce  John  to  exchange  for  that 
land,  and  pay  one  third  of  a  debt  which  he  was  not  liable 
for,  and  never  would  have  been,  except  for  that  paper.  And 
in  equity  it  was  as  binding  as  if  more  formally  drawn,  and 
under  seal  and  witnessed."  So  A.  bought  a  portion  of  land 
mortgaged  to  B.,  who  agreed  to  release  this  part.  B.  fore- 
closed the  mortgage,  not  making  A.  party  to  the  suit,  sold 
to  C,  who  had  notice,  and  released,  as  agreed,  to  A.  A.  had 
possession,  made  valuable  improvements,  and  mortgaged  to 
the  plaintiff,  who  brings  a  suit  for  foreclosure,  making  A.  and 
C.  parties.     Held,  the  plaintiff  took  a  title,  subject  to  a  pro- 

1  Hoffman  v.  Lee,  3  Watts,  352.  2  ibjj.  355^  356. 


CH.  XXI.]       VOID    AND    VOIDABLE    MORTGAGES.  —  FRAUD.  G29 

portional  part  of  B.'s  mortgage,  and  that  he  should  have  a 
decree  for  redemption  and  release  as  against  C.^ 

21.  But  examples  of  mere  inaction  or  concealment  are 
equally  numerous.  As  where  a  mortgage  note  is  assigned 
without  the  mortgage,  giving  an  equitable  title  to  the  as- 
signee, but  he  conceals  the  assignment  from  a  subsequent 
assignee  of  the  mortgage.^  So,  if  the  mortgagee  stands  by 
at  the  sale  by  the  mortgagor  of  part  of  the  land,  and  receives 
the  consideration  ;  that  part  is  discharged  from  the  mortgage.^ 
So  in, case  of  the  levy  of  an  execution  upon  the  land.*  (d)  And 
consent  may  be  implied,  from  the  mortgagee's  failure  to  dis- 
close his  title  when  informed  of  the  proposed  sale ;  long  delay 
in  claiming  under  the  mortgage,  until  the  death  of  the  mort- 
gagor ;  and  permitting  the  sale  of  other  property  included  in 
the  mortgage.5  So  Lord  Hardwicke  granted  a  perpetual  in- 
junction against  a  mortgagee,  who  was  casually  present  at  a 
negotiation  between  the  mortgagor  and  another,  as  to  a  mar- 
riage settlement  on  the  marriage  of  their  children,  and  con- 
cealed his  mortgage  from  the  father  of  the  intended  bride, 
but  made  a  verbal  promise  to  the  mortgagor  to  rely  upon 
his  personal  security  only.  And  the  Chancellor  there  refers 
to  another  case,  where  a  perpetual  injunction  was  granted 

1  Veach  v.  Schaup,  3  Clarke,  (Iowa)  *  Grace  v.  Mercer,  10  B.  Mon.  157 ; 

194.        ■  ace.   Otis   v.  Sill,  8   Barb.   102.     See 

"  Anderson  v.  Baumgartner,  27  Mis.  Potts  v.  Arnow,  4  Halst.  (;h.  322. 

80.  &  Taylor  v.  Cole,  4  Munf.  351. 

3  M'Cormick  v.  Digby,  8  Blackf.  99. 

(d)  But  the  rights  of  an  absent  mortgagee  cannot  be  impaired  by  any 
notice  given  at  an  execution  sale  of  tlie  equity,  as  to  the  application  of  the 
proceeds  to  his  debt.  Byars  v.  Bancroft,  22  Geo.  34.  A  mortgagee  is  not 
estopped  from  purchasing  the  mortgaged  premises  sold  at  a  sheriff's  sale 
under  a  judgment  prior  to  the  mortgage,  and  acquires  by  such  purchase  an 
absolute  title.  Harrison  v.  Roberts,  6  Florida,  711.  If  a  balance  remains 
over  the  amount  of  the  judgment,  he  has  a  right  to  discharge  it  to  the  extent 
of  his  mortgage,  and  the  remainder  in  cash,  which  will  be  held  by  the  sheriflT, 
subject  to  claims  of  subsequent  mortgagees  in  order  of  their  priority.  Ibid. 
It  is  held  that  the  assignment  of  a  mortgage  estops  the  mortgagee  and  those 
claiming  under  him  from  setting  up  a  title  adverse  to  the  mortgage.  Rogers 
V.  Cross,  3  Chand.  34. 

53* 


630  THE   LAW    OF   MORTGAGES.  [CII.  XXI. 

against  a  mortgagee,  who  had  engrossed  a  deed  of  settle- 
ment, without  disclosing  that  he  had  a  mortgage  on  the 
estate ;  and  that,  too,  although  the  mortgagee  was  not  of 
age  at  the  time  he  engrossed  the  deed.^  So  a  mortgagee 
requested  the  holder  of  a  note  of  the  mortgagor,  in  which 
the  mortgagee  was  surety,  to  obtain  judgment  on  the  note, 
and  levy  on  and  sell  the  mortgaged  premises ;  he  was  also 
present  at  the  sale,  and  asked  one  person  to  bid,  and  did  not 
object  to  the  sale.  Held,  he  was  estopped  to  assert  his  title 
under  the  mortgage.^  So  an  attorney,  holding  a  mortgage 
upon  land,  was  employed  by  the  mortgagor  to  draw  the  deed 
and  assist  in  the  conveyance  of  a  portion  of  the  premises  to 
an  ignorant  purchaser,  and,  although  knowing  that  the  pur- 
chaser was  paying  the  full  value  of  the  property,  concealed 
the  fact  of  the  mortgage.  Held,  neither  the  attorney,  nor  his 
assignee,  could  enforce  the  mortgage  against  this  portion  of 
the  land.^  So  a  mortgagee  was  told,  that  a  person  was 
drawing,  or  about  to  draw  another  mortgage  on  the  same 
property,  and  on  another  occasion  he  stated  to  a  party  inter- 
ested that  he  had  examined  the  clerk's  office,  &c.,  and  that 
he  had  frequent  transactions  with  the  mortgagor,  whose  em- 
barrassments were  notorious.  Held,  these  facts  were  suffi- 
cient to  affect  him  with  notice,  or  at  least  to  avoid  any  right 
of  tacking  subsequent  advances  to  the  mortgage  debt.*  So 
a  devise  of  lands  was  made  to  children  of  the  testator,  with 
a  provision  that  the  part  devised  to  one  of  them  should  be 
subject  to  the  maintenance  of  his  widow  for  life.  The  widow, 
claiming  a  beneficial  interest  in  the  lands  devised,  under  a 
mortgage  made  to  the  testator  and  herself,  deceptively  ac- 
quiesced in  the  provisions  of  the  will  for  several  years,  and 
thereby  gave  reason  for  confidence  on  the  part  of  bond  fide 
purchasers  from  the  children  that  such  provisions  were  to  be 
final  and  not  disturbed.    Held,  although  such  purchasers  were 

1  Berrystbrd   v.  Millward,   1  Barn.  Paige,  316.     See  Atterbury  v.  Willis, 

Ch.  101.  39  Eng.  L.  &  Eq.  175. 

-  Morford  i;.  Bliss,  12  B.  Mon.  255.  *  Averill  v.  Guthrie,  8  Dana,  82. 
•'  L'Amoreux    v.  Vandenburgh,    7 


CH.  XXI.]      VOID   AND   VOIDABLE   MORTGAGES.  —  FRAUD.  031 

not  proved,  in  fact,  to  have  acted  on  this  confidence,  she  was 
estopped  to  impeach  their  title.i  So  A.,  a  widow,  who,  under 
her  marriage  settlement  and  otherwise,  was  entitled  to  annual 
and  other  sums  charged  on  her  husband^  estates,  was  one 
of  the  trustees  of  his  will,  whereby  the  estates  were  deviled 
in  trust  to  raise  £2,000,  for  her  benefit,  and  subject  thereto 
in  trust  to  convey  the  estates  as  B.,  the  testator's  daughter 
by  a  former  marriage,  should  direct.  B.  borrowed  money 
upon  a  mortgage  of  some  of  the  estates,  in  which  A.  and  her 
co-trustee  joined,  and  whereby,  after  reciting  the  will  and  the 
agreement  for  the  loan,  and  that  B.  had  directed  A.  and  her 
co-trustee  to  make  such  conveyance  as  was  thereinafter  con- 
tained, A.  and  her  co-trustee,  as  devisees  in  trust,  by  the 
direction  of  B,,  conveyed  the  estates  to  the  mortgagee  upon 
trusts  for  sale  and  for  payment  of  the  mortgage  debt,  and  of 
the  surplus  as  B.  should  appoint,  and  subject  thereto  accord- 
ing to  the  trusts  of  the  will.  Held,  the  mortgage  did  not 
pass  the  beneficial  interest  of  A. ;  but  her  charges  must  be 
postponed  to  the  mortgage,  she  having  concurred  in  it,  with- 
out reserving  her  priority.^  So,  in  a  real  action,^  the  demand- 
ant gave  in  evidence  a  quitclaim  deed  from  the  tenant  to 
Daniel  Kimball,  dated  December  23,  1818;  the  levy  of  two 
executions  on  the  8th  of  November,  1827 ;  a  conveyance 
from  the  execution  creditors  to  the  demandant ;  a  deed  from 
Daniel  to  Leggett  and  Hance,  dated  November  27,  1828 ; 
and  a  deed  from  them  to  the  demandant,  dated  April  25, 
1832.  The  tenant  then  offered  a  bond  from  Daniel  to  him, 
dated  December  23,  1818,  conditioned  to  reconvey  the  prop- 
erty; a  mortgage  from  the  tenant  to  one  Peabody,  dated 
May  17,  1811,  to  secure  a  certain  sum ;  an  assignment  of  it 
by  Peabody  to  Wheelwright  and  Clark,  April  24,  1812 ;  an 
assignment  from  them  to  one  Buck,  of  June  2,  1827 ;  and  a 
deed  from  Buck,  reciting  a  judgment  on  the  mortgage  and 
possession  taken  under  it  in  1824,  to  the  tenant,  dated  June 

1  Ackla  V.  Ackla,  6  Barr,  228.  ^  Hatch  v.  Kimball,  2  Shepl.  9. 

2  Stronge  v.  Hawkes,  27  Eng.  L.  & 
Eq.  541. 


632  THE   LAW   OF  MORTGAGES.  [CH.  XXI. 

2,  1827.  The  levies  were  duly  recorded,  as  also  all  the  deeds, 
all  of  which  covered  the  demanded  premises.  The  bond  to 
reconvey  was  not  recorded.  The  tenant  had  been  in  posses- 
sion thirty  years,  miilt  a  house  on  the  land,  and  made  expen- 
sive repairs  both  before  and  after  Buck's  deed  to  him.  Upon 
these  facts,  the  defendant  having  been  defaulted,  the  default 
was  taken  off,  and  a  new  trial  ordered.  Upon  the  new  trial, 
a  verdict  was  rendered  for  the  demandant.  It  appeared,  that, 
after  the  tenant  had  paid  off  the  mortgage,  and  taken  a  re- 
lease of  the  premises,  having  conveyed  to  Daniel  and  being 
still  in  possession,  he  knowingly  suffered  two  executions  to 
be  levied  on  the  premises  as  Daniel's  without  claiming  title ; 
that  he  pointed  out  the  bounds  at  the  time  of  the  levy,  and 
agreed  to  become  a  tenant  and  pay  rent.  He  continued  the 
tenancy  till  1829,  and  rendered  an  account  of  repairs  made 
by  him  to  the  plaintiff,  who  subsequently  himself  made  re- 
pairs and  put  in  another  tenant.  No  claim  was  made  under 
the  mortgage,  till  after  the  plaintiff  had  purchased  the  title. 
Held,  the  mortgage,  under  these  circumstances',  was  extin- 
guished ;  that  it  could  be  kept  alive  only  by  the  equitable 
principle  of  being  most  for  the  mortgagee's  interest,  which 
was  rebutted  by  a  stronger  equity  on  the  part  of  the  demand- 
ant, and  could  not  be  applied  where  it  would  promote  a 
fraudulent  purpose.^ 

22.  In  the  case  of  Mocatta  v.  Murgatroyd,^  Lord  Cowper 
decided,  that  a  prior  mortgage  should  be  postponed  to  a  sub- 
sequent one,  merely  on  the  proof  that  the  prior  mortgagee  was 
a  witness  to  the  subsequent  mortgage.  This  case  was  over- 
ruled by  Lord  Hardwicke  in  the  case  of  Welford  v.  Beezely,^ 
and  by  Lord  Thurlow  in  Beckett  v.  Cordley,*  so  far  as  it 
charges  a  witness  to  a  deed  with  knowledge  of  its  contents 
merely  from  his  attestation.^  But  in  none  of  these  cases  was 
it  doubted,  that,  if  a  mortgagee  has  actual  knowledge  of  the 
contents  of  a  subsequent  mortgage,  and  nevertheless  stands 

1  Hatch  V.  Kimball,  4  Sliepl.  146.  *  1  Bro.  C.  C.  357. 

2  1  V.  Wms.  393.  ^  Ace.  Clabaugh  v.  Byerly,  7  Gill, 
8  1  Ves.  sen.  6.                                       354. 


CH.  XXI.]      VOID    AND    VOIDABLE   MORTGAGES.  — FRAUD.  033 

by,  and  witnesses  the  execution  of  the  second  mortgage, 
without  disclosing  his  prior  incumbrance,  this  would  be  sifch 
a  fraud  in  him,  as  would  authorize  a  court  of  equity  to  post- 
pone such  prior  incumbrance,  so  as  to  let'in  the  sul^sequent 
mortgage.i  But  a  first  mortgagee's  merely  drofting-  a  second 
mortgage  will  not  postpone  him,  unless  he  denied  and  fraud- 
ulently concealed  his  title.^  (e) 

1  See  Brinkerhoff  v.  Lansing,  4  Johns.  Ch.  65. 

2  Paine  v.  French,  4  Ham.  318. 


(e)  The  following  case  in  New  Hampshire,  though  relating  directly  to  the 
effect  of  this  kind  of  fraud  upon  an  aiiachment,  involves  also  the  rights  of 
mortgagor  and  mortgagee,  and  is  valuable  for  the  general  principles  and  the 
careful  distinctions  suggested  by  the  Court. 

The  defendant,  having  notice  that  a  part  of  the  real  estate  of  his  debtor 
was  mortgaged,  apparently  for  its  full  value  ;  and  being  informed  by  the 
plaintiff,  another  creditor,  that  he  proposed  to  procure  an  arrangement  by 
which  such  mortgage  should  be  removed  and  another  mortgage  made  to 
him ;  advised  the  plaintiff  to  complete  the  arrangement,  as  it  would  be  good 
security  for  his  debt.  The  agreement  having  been  made,  and  the  first  mort- 
gage discharged,  before  a  new  one  was  executed,  the  defendant  laid  an 
attachment  upon  the  land.  The  plaintiff  brings  a  bill  in  equity,  praying 
that  the  defendant  be  enjoined  from  claiming  under  his  attachment,  contrary 
to  the  plaintiff's  title  under  the  mortgage.  Held,  he  was  entitled  to  such 
decree.  Buswell  v.  Davis,  10  N.  H.  413.  (See  Beall  v.  Barclay,  10  B.  Mon. 
261.)  In  giving  the  opinion  of  the  Court,  Parker,  C.  J.,  says  (Ibid.  424, 
425,  428)  : — "We  are  not  required  to  give  an  opinion  upon  the  question, 
whether  a  creditor  can  by  means  of  an  attachment  avail  himself  of  the  ben- 
efit of  a  mere  change  of  mortgages,  in  a  case  where  he  had  no  knowledge 
that  sucli  change  was  intended,  but  designed  merely  to  avail  himself  of  his 
right  to  attach  the  equity  in  (of)  redemption.  If  in  such  case  the  change 
"was  to  his  prejudice,  the  mortgage  substituted  being  of  greater  amount  than 
that  previously  existing,  he  might  well  contend  that  his  rights  could  not  thus 
be  affected  by  transactions  to  which  he  was  no  party,  and  of  which  he  had 
no  notice.  Even  if  the  new  mortgage  upon  the  land  was  of  less  amount  than 
that  previously  existing ;  still,  if  he  had  no  knowledge  respecting  the  inten- 
tion to  make  an  exchange,  and  attached  in  good  faith,  he  might  perhaps  well 
claim  the  benefit  of  the  accidental  advantage  he  had  derived,  and  hold  the 
land  wholly  discharged  from  incumbrance,  because  the  prior  mortgage  was 
removed,  and  the  new  one  executed  subsequent  to  his  attachment.  We  do 
not  undertake  to  say  that  such  would  be  the  result     Nor  is  the  case  pre- 


634  THE   LAW    OF   MORTGAGES.  [CH.  XXI. 

23.  In  reference  to  the  question,  whether  registration  of 
the  prior  mortgage  constitutes  such  notice  thereof,  as  to  pre- 


sented one  where  the  attaching  creditor  has  mere  knowledge  that  a  change 
of  security  is  intended,  and  attaches  with  an  intention  of  availing  himself  of 
the  change,  by  interposing  his  attachment  before  the  new  mortgage,  in  case 
the  parties  to  the  contemplated  change  shall  perfect  it,  without  the  caution 
of  examining  the  records  to  ascertain  whether  any  creditor  has  attached. 
That  would  be  a  much  stronger  case  than  the  other  ;  but  whether  the  cred- 
itor might  not  in  such  case  legally  avail  himself  of  the  want  of  caution, 
asserting  his  right  to  attach,  and  take  the  chance  of  the  removal  of  the  ex- 
isting incumbrance,  so  long  as  he  in  no  way  participated  in  advising  to  the 
change  itself,  is  a  question  we  may  pass  by  at  this  time.  The  evidence  car- 
ries the  present  case  still  further.  Without  going  into  the  question,  whether 
the  testimony  does  not  prove  that  the  defendant  advised  to  the  arrangement 
with  the  very  purpose  of  interposing  an  attachment,  after  the  mortgage  to 
Damon  &  Stickney  was  removed,  and  before  that  to  the  plaintiff  was  exe- 
cuted, it  is  sufficient  that  being  consulted  respecting  the  arrangement,  he 
advised  the  plaintiff  to  effect  it.  If  he  desired  to  have  any  provision  made 
in  that  arrangement  for  himself,  he  should  have  so  stated  explicitly.  He 
cannot  be  permitted,  after  giving  such  advice,  to  avail  himself  of  the  ex- 
change of  the  mortgages,  and  thereby  obtain  a  security  against  the  plaintiff, 
which  he  could  not  have  had  against  Damon  &  Stickney.  An  attachment, 
with  the  purpose  of  obtaining  a  security  prior  to  that  of  the  plaintit!",  under 
these  circumstances,  would  not  be  a  fair  exercise  of  superior  diligence,  but 
would  operate  as  a  direct  fraud  upon  the  plaintiff." 

In  Massachusetts,  the  same  question  arose  upon  an  alleged  fraudulent 
attachment.  The  plaintiff,  proposing  to  purchase  land  which  was  subject  to 
a  mortgage  to  the  defendant,  paid  to  the  mortgagee  the  value  of  his  interest 
In  the  land,  and  the  mortgagee  reconveyed  to  the  mortgagor,  to  enable  him 
to  pass  the  entire  title,  four  days  afterwards,  but  immediately,  and  before 
execution  of  the  deed,  attached  the  land  in  a  suit  against  the  mortgagor, 
and  subsequently  levied  an  execution  upon  it.  In  an  action  of  trespass  for 
such  levy,  held,  the  attachment  was  fraudulent  and  void,  and  the  plaintiff 
entitled  to  judgment,  but,  no  actual  damage  to  the  land  being  proved,  that 
he  could  recover  only  nominal  damages.     Spear  v.  Hubbard,  4  Pick.  143. 

In  June,  1782,  the  demanded  premises  were  mortgaged  for  their  full 
value  to  McFarland  by  Freeland.  In  January,  1792,  the  plaintiff  attached 
the  property  in  a  suit  against  the  mortgagor,  subsequently  recovered  judg- 
ment, and  extended  an  execution  upon  the  estate.  Four  days  after  the 
attachment,  the  plaintiff  was  present  and  assisting  at  a  negotiation  between 
the  mortgagee  and  mortgagor  and  one  Goddard.     The  mortgage  was  can- 


CH.    XXI.]       VOID    AND    VOIDABLE   MORTGAGES.  —  FRAUD.  635 

vent  a  subsequent  incumbrancer  from  availing  himself  of 
any  concealment  or  misrepresentation,  in  order  to  give  prior- 
ity to  his  own  title  ;  it  is  held,  that,  if  a  mortgagee  represents 
to  a  creditor  of  the  mortgagor,  who  has  attached  his  goods, 
that  the  mortgage  debt  is  paid  or  satisfied  and  nothing  due 
thereon,  and  the  creditor,  by  reason  of  such  statement,  relin- 
quishes the  attachment,  and  takes  a  mortgage  of  the  land  to 
secure  his  debt;  the  second  mortgage,  as  between  the  two 
mortgagees,  takes  precedence  of  the  first,  though  the  first 
was  on  record  at  the  time  of  such  representation.  The  Court 
remark:  — "  Nor  is  it  any  objection,  that  the  title  of  Piatt 
was  by  a  recorded  deed.  It  is  true,  that  title  by  mortgage- 
deed  cannot  be  released  by  parol.  But  although  the  legal 
title  might  exist,  as  a  paper-title,  the  party  may  not  be  able 
to  enforce  it  or  render  it  effectual.  This  species  of  defence, 
when  offered  to  control  written  conveyances  or  title-deeds,  is 
no  more  obnoxious  to  the  objection  of  permitting  oral  evi- 
dence to  control  written,  than  exists  in  the  ordinary  cases  of 
setting  aside  conveyances  for  fraud  upon  oral  proof."  ^  (/) 

1  Piatt  V.  Squire,  12  Met.  494.     But  see  Clabaugh  v.  Byerly,  7  Gill,  354. 
See  also  Napier  v.  Elam,  6  Yerg.  116. 

celled,  upon  Goddard's  paying  pai't  of  the  debt,  and  the  mortgagor's  giving  a 
new  mortgage  of  other  lands,  which  were  also  attached  by  the  plaintiff  for 
the  balance  due  him.  The  mortgagor  then  conveyed  the  demanded  prem- 
ises with  other  lands,  in  fee,  to  Goddard,  under  whom  the  defendant  claims. 
The  plaintiff  was  present,  assisted  in  casting  the  sums  due,  and  did  not  dis- 
close his  attachment ;  but  he  afterwards,  before  judgment,  informed  the 
mortgagee  of  it,  and  expressed  his  intention  to  levy  his  execution  upon  the 
lands  last  mortgaged,  but,  on  the  mortgagee's  threatening  to  oppose  him, 
and  make  known  his  privity  to  the  transactions,  he  consented  th^t  the  mort- 
gagee should  have  the  benefit  of  such  mortgage.  Judgment  was  rendered 
for  the  defendant  upon  a  ground  independent  of  the  facts  above  stated.  In 
regard  to  this  part  of  the  case.  Parsons,  C.  J.,  remarks  :  —  "  Were  we  sit- 
ting as  a  Court  of  Chancery,  with  all  the  equitable  powers  of  that  Court,  we 
ought  to  set  aside  the  plaintiff's  attachment  on  account  of  his  fraudulent 
concealment  of  it.  But  as  the  justice  of  this  case  can  be  attained  by  the 
determination  of  the  first  question,  it  is  not  necessary  to  decide  this  point 
when  sitting  as  a  Court  of  Law."     Foster  v.  Briggs,  3  Mass.  313. 

(/)  In  the  above  case,  the  suit  was  a  bill  in  equity  to  redeem,  brought  by 


636  THE  LAW   OF  MORTGAGES.  [CH.   XXI. 

24.  But  on  the  other  hand  it  is  held,  that  a  mortgagee,  who 
has  knowledge  of  a  subsequent  purchase,  and  has  stood  by 
and  seen  the  purchaser  making  repairs  and  improvements, 
without  speaking  of  the  mortgage  or  making  objections, 
may  still  set  up  the  mortgage,  if  it  was  at  the  time  on  rec- 
ord, and  if  it  does  not  appear  that  he  knew  the  purchaser 
was  ignorant  of  the  mortgage,  and  that  he  was  guilty  of  a 
fraudulent  concealment,^  So  one  who  holds  a  mortgage 
duly  recorded,  more  especially  if  he  makes  proclamation  of 
the  fact  at  a  sheriff's  sale  subsequent  to  the  date  of  the 
mortgage,  may  enforce  his  mortgage  against  the  purchaser.^ 
And  in  another  case  the  Court  remark  :  — "  The  incumbrance 
offered  to  be  shown  was  a  preexisting  mortgage,  which  must 
have  been  upon  record,  or  it  could  not  affect  the  defendant, 
unless  he  had  notice  at  the  time  of  the  conveyance,  in  which 
case  he  could  not  now  complain.  If  the  deed  were  upon 
record,  it  would  be  constructive  notice  to  defendant  as  well 
as  plaintiff,  and  it  does  not  appear  either  of  them  had  notice 
in  fact.  And  if  the  plaintiff  had  notice  in  fact  of  the  incum- 
brance, which  was  upon  record,  and  used  no  means  to  pre- 
vent the  knowledge  coming  to  the  defendant,  he  would  be 
guilty  of  no  legal  fraud  in  selling  and  deeding  to  defendant, 
without  notifying  him  of  the  incumbrance."  ^ 

25.  Various  other  applications  have  been  made  of  the 
same  general  principle,  as  to  the  effect  of  misrepresentation 

1  Marston  v.  Brackett,  9  N.  H.  337.  ^  -per  Redfield,  J.,  Richardson  i-.  Bo- 

^  Patterson    v.   Esterling,   27   Geo.     right,  9  Verm.  372;  27  Geo.  205. 
205. 


a  second  mortgagee  against  a  first  mortgagee,  who  also  claimed  under  a 
third  mortgage,  which  was  made  under  the  misrepresentation  above  referred 
to  as  to  the  second  mortgage.  The  defendant  set  up  an  absolute  title  by 
entry  and  continued  possession  for  the  purpose  of  foreclosure,  under  the 
third  mortgage ;  a  tender  having  been  made  by  the  plaintiff  only  of  the 
amount  due  on  the  first  mortgage.  Upon  other  grounds,  the  plaintiff  was 
allowed  to  redeem  a  portion  of  the  mortgaged  estate,  but  as  to  the  rest,  the 
title  under  a  foreclosure  of  the  third  mortgage  appears  to  have  been  sus- 
tained. 


CH.  XXI.]     VOID    AND    VOIDABLE   MORTGAGES. FRAUD.  637 

or  concealment  upon  the  rights  of  parlies  interested  in  a 
mortgage.  Thus,  in  the  late  case  of  West  v.  Jones,i  one  of 
two  trustees  paid  over  only  a  portion  of  the  money,  in  con- 
sideration of  which  a  mortgage  was  made  to  them  ;  but  the 
facts  showing,  that  the  other  trustee  had  been  misled  inio  an 
advance  of  the  money  to  his  associate,  in  part  by  the  conduct 
and  declarations  of  the  mortgagor,  and  the  trustee  who  re- 
ceived the  money  having  died  insolvent,  the  mortgage  was 
held  to  bind  the  mortgagor  for  the  full  sum  expressed  therein. 
The  Court  say  :  2  _  »  The  plaintiff  relies  on  a  principle  per- 
fectly familiar,  not  only  to  courts  of  equity  but  to  courts  of 
law,  namely,  that  where  a  party  has  by  words  or  by  conduct 
made  a  representation  to  another,  leading  him  to  believe  in 
the  existence  of  a  particular  fact  or  state  of  facts,  and  that 
other  person  has  acted  on  the  faith  of  such  representation, 
then  the  party  who  made  the  representation  shall  not  after- 
wards be  heard  to  say  that  the  facts  were  not  as  he  repre- 
sented them  to  be.  This  doctrine  is  not  confined  to  cases 
where  the  original  representation  was  fraudulent.  The  doc- 
trine not  only  of  this  court,  but  also  of  courts  of  law,  goes 
much  further.  Even  where  a  representation  is  made  in  the 
most  entire  good  faith,  if  it  be  made  in  order  to  induce 
another  to  act  upon  it,  or  under  circumstances  in  which  the 
party  making  it  may  reasonably  suppose  it  will  be  acted  on, 
then  prima  facie,  the  party  making  the  representation  is 
bound  by  it,  as  between  himself  and  those  whom  lie  has 
thus  misled." 

26.  If  a  second  mortgagee  stand  by,  and  see  the  first  in- 
duced by  the  mortgagor  to  release  his  mortgage  and  take  an 
assignment  of  a  subsequent  security,  supposing  it  to  be  the 
second  ;  the  second  mortgage  will  be  postponed.*^ 

27.  The  rule  in  question  applies  to  a  subsequent  mort- 
gagee, where  the  title  of  the  first  mortgagee  is  originally  de- 
fective, but  is  strengthened  by  a  title  acquired  from  a  third 
person  after  the  making  of  the  second  mortgage  ;  the  second 

1  3  Eng.  Rep.  223.  ^  Stafford  v.  Ballou,  17  Verm.  329. 

2  Ibid.  227. 

VOL.    I.  54 


638  THE    LAW    OF   MORTGAGES.  [CH.  XXI. 

mortgagee  having  notice  of  the  first  mortgage.  Thus  A. 
conveyed  to  B.,  in  mortgage,  land,  the  title  to  vi^hich  -was 
in  the  United  States.  C.  afterwards  obtained  a  patent  to 
the  land,  and  conveyed  it  to  A.,  who  afterwards  mortgaged 
it  to  D.,  with  notice  of  the  prior  mortgage  to  B.  Held, 
that  the  conveyance  by  C.  to  A.  enured  to  the  benefit  of  B., 
and  that  D.  took  only  as  second  mortgagee  ;  and  the  rule 
was  the  same,  whether  D.  had  actual  notice  of  the  mort- 
gage to  B.,  or  only  constructive  notice,  by  the  registry  of 
B.'s  mortgage.^ 

28.  Where  a  note  was  made  by  five  joint  trustees,  and  a 
mortgage  of  the  joint  trust  property  given  to  secure  it,  pur- 
porting to  convey  the  whole  estate,  but  signed  by  only  four 
of  the  trustees,  although  drawn  in  the  name  of  all,  and  it 
appeared,  from  the  circumstances,  that  the  other  trustee  must 
have  known  of  the  transaction,  and  that  he  never  made  any 
objection  to  it ;  held,  the  mortgage  was  binding  upon  him 
by  an  equitable  estoppel,  and  the  purchaser  of  the  equity  of 
redemption  of  the  mortgagors  at  a  sheriff's  sale  was  also 
bound  by  it.^ 

29.  The  general  principle  above  referred  to  has  been 
applied,  in  England,  to  the  case  of  a  mortgagee's  allowing 
the  mortgagor  to  retain  the  title-deeds,  and  thus  create  a 
wrong  impression  as  to  his  title.  (See  ch.  22.)  Thus  in 
Peter  v.  Russell,^  it  was  held,  that,  if  a  mortgagee  of  a  lease- 
hold estate  lends  the  original  lease  to  the  mortgagor,  for  the 
purpose  of  enabling  him  to  take  up  more  money,  which  is 
accordingly  done,  and  a  second  mortgage  made  ;  the  latter 
mortgage  shall  have  priority  of  the  former.  So,  in  Farrow 
V.  Rees,^  Lord  Langdale,  M.  R.,  says  :  —  "  The  first  objection 
made  to  the  mortgage  is,  that  no  title-deeds  were  handed 
over  to  the  mortgagee.  The  omission  is  not  of  itself  sufl&- 
cient  to  invalidate  the  mortgage ;  though  a  mortgagee  may 
omit  to  take  the  title-deeds  under  such  circumstances  as  to 

1  Warburton  v.  Mattox,  1  Morris,  ^  2  Vern.  726.      See  Atterbury  v. 

367.  Willis,  39  Eng.  Law  &  Eq.  175. 

^  State  Bank  v.  Campbell,  2  Rich.  *  4  Beav.  21. 
Eq.  17K. 


CH.  XXI.]     VOID    AND    VOIDABLE   MORTGAGES.  —  FRAUD.  639 

displace  his  priority  in  favor  of  a  subsequent  mortgagee." 
So,  under  an  agreement  to  sell  an  estate,  a  part  of  the  price 
to  be  paid  on  execution  of  the  deed,  the  balance  secured  by 
mortgage,  the  sum  agreed  was  paid,  and  the  deed  executed, 
but,  with  the  title-deeds,  retained  by  the  seller.  Without 
notice  to  the  seller,  the  purchaser  mortgaged  to  a  third  per- 
son, who  did  not  investigate  the  title,  or  inquire  as  to  the 
title-deeds,  and  afterwards  to  the  seller  as  agreed.  Held,  the 
second  mortgage  should  have  priority  of  the  first.^  The 
Court  say  :2 — "The  title  to  chattels  is  evidenced  by  pos- 
session ;  but  the  title  to  land  is  evidenced  by  written  instru- 
ments. Therefore  it  was  the  duty  of  Morgan,  before  he 
took  his  mortgage,  to  ask  for  the  deeds  ;  and,  if  he  had  asked 
for  them,  he  would  have  learnt  that  they  were  in  possession 
of  persons  who  claimed  a  lien  or  charge  upon  the  tenements, 
for  unpaid  purchase-money.  And  I  think  that  he  must  be 
taken  to  have  had  notice  of  those  circumstances,  which, 
if  he  had  not  neglected  his  duty,  would  have  come  to  his 
knowledge." 

30.  The  rule  above  stated  has  been  usually  applied  to  a 
party  falsely  representing  that  an  incumbrance  was  extin- 
guished, when  it  was  really  still  subsisting.  In  the  follow- 
ing case,  the  application  was  reversed.  One  interested  in  an 
estate,  which  w^as  charged  with  an  annuity,  was  asked  by  a 
third  person,  who  was  about  to  loan  money  to  the  annuitant, 
whether  the  charge  was  still  subsisting,  and  replied  in  the 
affirmative,  when  in  fact  it  had  been  satisfied.  Held,  the 
loan  was  still  a  charge  upon  the  land  against  the  party's 
heirs.^ 

31.  There  is  a  class  of  cases,  in  which  the  general  doctrine 
of  equity  above  considered  has  been  somewhat  restricted,  or 
construed  more  favorably  to  the  rights  of  a  prior  mortgagee. 
In  the  case  of  Whitbread  v.  Jordan,*  Alderson,  B.,  says :  — 
"  When  a  party  having  knowledge  of  such   facts  as  would 

1  Worthington  v.  Morgan,  16  Sim-  »  1  Story  on  Eq.  210 ;  Pearson  v. 
547  Morgan,  2  Bro.  d88. 

.  'ibid.  551.  *  1  Y.  &  ColL  328.     See  Carpenter 

V.  Curamings,  40  rs.  11.  loo. 


640  THE   LAW    OF   MORTGAGES.  [CH.  XXI. 

lead  any  honest  man  using  ordinary  caution,  to  make  further 
inquiries,  does  not  make,  but,  on  the  contrary,  studiously 
avoids  making'  such  obvious  inquiries,  he  must  be  taken  to 
have  notice  of  those  facts  which,  if  he  had  used  such  ordi- 
nary dihgence,  he  would  readily  have  ascertained."  And 
where  a  mortgagee  had  notice  of  a  previous  lien  upon  the 
land  before  he  took  the  mortgage,  he  cannot  escape  from  its 
ejfifect  by  having  forgotten  it  at  the  time  he  took  the  mort- 
gage.^ So  a  subsequent  mortgagee  cannot  avail  himself  of 
this  objection  to  the  prior  mortgage,  if  he  knew  of  its  exist- 
ence when  his  own  was  given,  but  has  delayed  to  object  on 
this  ground.  As  where  he  thus  delayed  for  nearly  eighteen 
months.^ 

32.  In  the  case  of  Jones  v.  Smith,^  Wigram,  V;  C,  goes 
into  an  extended  notice  of  the  decisions  upon  this  subject, 
the  result  of  which  he  states  as  follows  :  —  "It  is  indeed 
scarcely  possible  to  declare  a  priori  what  shall  be  deemed 
constructive  notice,  because,  unquestionably,  that  which 
would  not  affect  one  man*  may  be  abundantly  sufficient  to 
affect  another.  But  I  believe  I  may,  with  sufficient  accuracy 
for  my  present  purpose,  and  without  danger,  assert  that  the 
cases  in  which  constructive  notice  has  been  established,  re- 
solve themselves  into  two  classes.  First,  cases  in  which  the 
party  charged  has  had  actual  notice  that  the  property  in  dis- 
pute was  in  fact  charged,  incumbered,  or  in  some  way  affect- 
ed, and  the  Court  has  thereupon  bound  him  with  constructive 
notice  of  facts  and  instruments,  to  a  knowledge  of  which  he 
would  have  been  led  by  an  inquiry  after  the  charge,  incum- 
brance, or  other  circumstance  affecting  the  property  of  which 
he  had  actual  notice ;  and  secondly,  cases  in  which  the  Court 
has  been  satisfied  from  the  evidence  before  it,  that  the  party 
charged  had  designedly  abstained  from  inquiry  for  the  very 
purpose  of  avoiding  notice."  And  in  conformity  with  these 
views,  where,  before  advancing  money  on  a  mortgage,  the 


1  Hunt  V.  Clark,  6  Dana,  56.  s  i  jjarc,  55. 

2  Clabaugli  v.  Bycrly,  7  Gill,  354. 


CH.  XXI.]      VOID    AND    VOIDABLE   MORTGAGES.  —  FRAUD.  G41 

mortgagee  inquired  of  the  mortgagor  and  his  wife,  whether 
any  settlement  had  been  made  upon  their  marriage,  and  was 
informed  that  a  settlement  had  been  made  of  the  wife's  for- 
tune only,  and  that  it  did  not  include  the  husband's  estate 
which  was  proposed  as  the  security,  and  he  afterwards  ad- 
vanced  the  mortgage-money  without  seeing  the  settlement 
or  knowing  its  contents  ;  held,  the  mortgagee  was  not 
affected  with  constructive  notice  of  the  contents  of  such 
settlement.^ 

33.  It  has  been  held  that  a  mortgagee,  whose  mortgage  is 
on  record,  upon  being  present  at  a  sale  of  the  equity  of  re- 
demption on  execution,  is  not  called  upon  to  give  notice  of 
his  mortgage  to  the  purchasers.'-^  So  a  denial  by  a  mort- 
gagee that  he  has  a  mortgage,  will  not  postpone  his  lien, 
unless  he  knows  at  the  time,  that  he  is  inquired  of  with  a 
view  to  a  loan  of  money  on  the  credit  of  the  same  estate.^ 
So,  it  is  said,  where  one  who  is  "  about  to  lend  money 
on  real  estate,  applies  to  one  who  holds  a  prior  mortgage, 
to  ascertain  whether  he  has  any  incumbrance  on  it ;  there 
is  no  doubt,  in  such  a  case,  that  if  the  person  making  the 
application  discloses  that  he  is  about  lending  money  on  the 
estate,  he  will  be  preferred  to  the  first  mortgagee,  should 
the  latter  deny  his  having  a  mortgage,  or  assert  that  it  is 
satisfied ;  and  it  seems  agreeable  to  the  dictates  of  reason 
and  good  conscience,  that  his  claim,  should  be  postponed  to 
that  of  a  person  whose  confidence  was  inspired  by  the  mis- 
representation of  one  who  was  acting  for  himself,  and  every 
way  competent  to  inform  him  of  the  truth.  But  in  all  the 
cases  which  have  been  decided  on  this  principle,  the  fraud,  for 
such  it  is  supposed  to  be,  has  been  practised  by  a  party  who 
has  himself  an  interest  in  the  subject-matter  of  inquiry,  who 
cannot  well  be  mistaken,  and  whose*  conduct  therefore  ought 
to  be  conclusive  on  him,  vi^hen  the  rights  of  third  persons 
come  in  question."  *     And  it  has  been  held  in  Maryland,  that 

1  Jones  V.  Smith,  1  Hare,  43.  *  Per  Livingston,  J.,  Lee  i;.  Munroe, 

2  James  v.  Morey,  2  Cow.  246.  7  Cranch,  368. 
^  Chester  v.  Greer,  5  Humph.  26. 

54* 


642  THiS    LAW   OF   MORTGAGES.  [CH.  XXI. 

mere  silence  will  not  estop  the  prior  mortgagee.  There  must 
be  actual  fraud,  such  as  false  representations,  assurances  of 
good  title,  or  deceptive  silence  when  information  is  asked. 
And  the  burden  of  proving  such  fraud  lies  on  the  subsequent 
mortgagee.^  So  the  principle  in  question  was  held  not  to 
apply,  because  the  mortgagee  "  did  not  anything  against 
good  conscience,  whereby  to  forfeit  his  mortgage,  he  having 
neither  actually  encouraged  the  plaintiff  to  lend  the  money, 
nor  passively,  as  standing  by  and  concealing  the  mortgage, 
knowing  that  the  plaintiff  was  about  to  lend  money  on  the 
premises."  -  And  where  money  is  loaned  to  the  mortgagor, 
on  the  faith  of  the  declarations  of  the  mortgagee,  denying 
that  he  has  a  mortgage,  but  no  security  is  taken  on  the  prop- 
erty itself,  the  mortgage  cannot  be  avoided  for  fraud  in  mak- 
ing the  false  declarations.^ 

34.  If  a  mortgagee  consents  to  the  sale  of  the  m.ortgaged 
premises  under  an  administration  suit,  he  may  stiU  claim 
priority  in  the  distribution  of  the  proceeds.^  Wigram,  Vice- 
Chancellor,  says,^  "  That  a  mortgagee  is  entitled  to  his  princi- 
pal, interest,  and  costs,  as  against  the  mortgagor  and  puisne 
incumbrancers  claiming  under  the  mortgagor,  cannot,  as  a 
general  proposition,  be  disputed.  But  it  was  said  that  in 
this  case  the  mortgagee,  consenting  to  a  sale,  had  thereby,  to 
the  extent  at  least  of  the  costs  of  the  sale,  lost  his  priority, 
and  that  the  expenses  of  the  sale  should,  at  all  events,  come 
out  of  the  proceeds  of  the  sale  in  the  first  instance.  I  am  not 
of  that  opinion.  The  mortgagee  consented  that  the  estate 
should  be  sold  free  from  incumbrances.  How  can  such  a 
consent  have  the  effect  of  subjecting  the  security  of  the  mort- 
gagee to  the  costs  of  the  sale.  The  consent  of  the  mort- 
gagee, that  the  mode  of  administering  the  equity  of  redemp- 
tion shall  be  by  a  sale  o*f  the  estate,  free  from  incumbrances, 
is  no  waiver  of  his  priority  ;  although,  where  the  sale  is 
peculiarly  for  his  benefit,  it  may  possibly  be  otherwise." 

^  Clabaugh  i>.  Byerly,  7  Gill,  354.  *  Hepwortli  v.  Heslop,  3  Hare,  485. 

2  Peter  v.  Russell,  2  Vern.  727.  &  Ibid.  pp.  486,  487. 

8  Cheater  v.  Greer,  5  Humph.  26. 


CH.  XXr.]      VOID    AND    VOIDABLE   MORTGAGES.  —  FRAUD.  643 

35.  So  although,  where  a  mortgagee  directed  and  sanc- 
tioned a  sale  of  the  property,  without  reference  to  the  mort- 
gage or  the  equity  of  redemption  ;  received  the  proceeds  ; 
and  did  not  object  to  or  quash  the  sale  ;  his  conduct  implies 
an  admission  of  title  in  the  mortgagor,  and  an  abandonment 
of  any  title  in  himself  inconsistent  therewith,  and  l>ais  him 
from  setting  up  the  mortgage  in  equity  against  the  purcliaser : 
yet  it  is  not  so  where  the  lien  is  acquired  by  attachment  in 
chancery.^ 

36.  If  a  conveyance  is  made,  with  a  covenant  against  all 
claims  by  the  grantor  or  any  one  under  him,  and  the  grantee 
gives  back  a  bond,  to  reconvey  the  premises  to  the  grantor 
on  demand,  and  the  grantor  afterwards  becomes  assignee  of 
a  mortgage  previously  made  by  him  to  a  third  person ;  he  is 
not  estopped  from  setting  up  his  title  under  the  mortgage 
against  the  grantee  or  those  claiming  under  him.^  The 
Court  say,^  "  Taking  both  instruments  together,  Daniel  (the 
grantee)  was  to  take  no  beneficial  interest.  He  could  not 
avail  himself  of  the  covenant  in  the  deed  to  him.  He  could 
neither  enforce  its  performance,  nor  recover  damages  if  it  was 
not  performed.  It  was  completely  neutralized  and  defeated 
by  the  condition  in  the  bond.  Stephen  (the  grantor)  then  is 
not  estopped  to  claim  the  land ;  and  he  was  at  liberty  to 
acquire  for  his  own  use  any  collateral  title  or  assurance." 

37.  Where  a  conveyance  of  lands  is  made  by  a  person 
not  the  proprietor,  but  assuming  to  be  his  agent,  such  pro- 
prietor does  not  ratify,  or  estop  himself  to  deny,  the  sale,  by 
taking  notes  and  a  mortgage  back,  the  mortgage  not  refer- 
ring specifically  to  the  deed,  or  containing  anything  incon- 
sistent with  the  agent's  want  of  authority.* 

38.  Though  the  prior  incumbrancer  inaccurately  states 
a  particular  sum  as  the  amount  of  his  charge ;  yet  if  such 
sum  is  also  stated  to  be  subject  to  an.  indefinite  increase,  so 
that  the  subsequent  incumbrancer  could  not  have  relied  upon 

I  S';.SSil,'"2  l.f;.\'''-         :  ™o'«  ».  Hobbs.  29  Maine,  m. 


644  THE   LAW    OF   MORTGAGES.  [CH.  XXI. 

having  any  specific  amount  of  security;  he  will  be  held  to 
have  had  notice  of  the  prior  incumbrance.^ 

39.  The  doctrine  of  estoppel  has  been  held  not  applicable 
to  a  feme-covert,  who  merely  stands  by,  without  objection,  at 
a  sale  made  by  her  husband.^  (g) 

40.  Owing  to  the  confidential  relation  between  an  attorney 
and  his  client,  it  has  been  held  in  some  cases,  that  a  mortgage 
fi:om  the  latter  to  the  former  is  invalid,  upon  the  presumption 
of  a  want  of  consideration,  or  an  unfair  bargain.  Thus  it 
has  been  decided,  that,  where  a  party  to  a  partition  suit, 
pending  the  same,  mortgages  his  interest  to  his  solicitor,  such 

1  Gibson  v.  Ingo,  6  Hare,  112.  ^  Rangeley  v.  Spring,  8  Shepl.  130. 

(jg)  The  qualification  of  the  principle  of  estoppel  has  been  applied  in  favor 
of  one  claiming  adversely  to  a  mortgagee.  Thus,  one  taking  a  mortgage, 
from  an  insolvent,  of  copyholds,  without  notice  of  the  insolvency,  cannot 
claim  priority  in  equity  to  the  assignees,  on  the  ground,  that  by  neglecting 
to  take  possession  of  the  premises,  or  sell  them,  permitting  the  insolvent  to 
retain  possession,  and  omitting  to  make  their  entry  on  the  Court  rolls,  as 
required  by  the  insolvency  acts,  they  have  enabled  the  insolvent  to  commit 
a  fraud  upon  the  mortgagee,  though  nineteen  years  have  elapsed  since  the 
insolvency.     Cole  v.  Coles,  6  Hare,  517. 

It  is  provided  by  statute  in  Georgia  and  South  Carolina,  that  a  mortgagor 
who  mortgages  anew,  without  disclosing  in  writing  to  the  second  mortgagee 
the  existence  of  the  first  mortgage,  shall  not  be  allowed  to  redeem  the  second 
mortgage.  But  the  second  mortgagee  (whose  deed  is  on  record,  in  Georgia,) 
may  redeem  the  first  mortgage.  In  South  Carolina,  if  a  person  suffer  a  judg- 
ment or  enter  into  a  statute  or  recognizance  binding  his  land,  and  afterwards 
mortgage  it,  without  giving  notice  in  writing  of  the  prior  incumbrance,  un- 
less within  six  months  from  a  written  demand  he  clear  off  such  incumbrance, 
he  shall  not  be  allowed  to  redeem.  Prince,  161  ;  1  Brev.  166-168.  These 
statutes  appear  to  be  substantially  reenactments  of  an  act  of  parliament. 
Mr.  Greenleaf  says,  (2  Greenl.  Cruise,  126,  n.)  there  are  provisions  similar 
to  this  (the  concealment  of  a  prior  incumbrance  by  the  mortgagor,  St.  4 
AVm.  &  Mary,  ch.  16,)  in  South  Carolina,  Georgia,  Tennessee,  and  North 
Carolina.  But  they  are  all  originally  of  colonial  enactment,  probably  either 
in  the  absence  of  any  registration  laws,  or  under  the  idea  that  registration 
was  not  notice  to  all  the  world.  In  the  other  States,  the  subject  is  left  to  be 
dealt  with  upon  general  law. 


CH.  XXI.]      VOID   AND    VOIDABLE   MORTGAGES. —  FRAUD.  CA't 

mortgage  is  not  even  primd  facie  evidence  of  the  debt  for 
which  it  purports  to  be  given.  And  the  assignee  of  such 
mortgage,  though  for  valuable  consideration,  and  without 
notice  of  any  equities  between  the  mortgagor  and  mortgagee, 
will  take  it  subject  thereto.^  But  a  mortgage  from  client  to 
attorney  for  a  just  debt  will  not  be  set  aside  in  equity .- 

41.  In  connection  with  the  general  subject  of  void,  &c. 
mortgages,  it  may  be  stated,  that  reference  has  been  made  in 
a  former  chapter  (see  ch.  1,  §  20,)  to  the  mortgages  of  infants, 
which,  like  most  of  their  legal  acts,  are  held  to  be  voidable, 
not  void,  and  therefore  susceptible  of  confirmation  upon  their 
coming  of  age.  And  where  an  infant  leases,  and  on  com- 
ing of  age  mortgages  to  the  lessee,  referring  in  the  mortgage 
to  the  lease ;  this  is  a  confirmation  of  such  lease.'^ 

42.  In  Robbins  v.  Eaton,*  one  Harvey  conveyed  to  the 
defendant,  taking  back  a  mortgage  for  the  price.  The  notes 
and  mortgage  were  assigned  to  the  demandant,  who  brings 
a  writ  of  entry  for  the  premises.  It  appeared  that  the  de- 
fendant was  an  infant  at  the  time  of  making  the  mortgage, 
but  after  coming  of  age  he  occupied  the  premises,  and  offered 
to  sell  them.  Held,  if  the  purchase  and  mortgage  back  were 
one  and  the  same  transaction,  the  defendant's  conduct  after 
coming  of  age  was  an  affirmance  of  the  mortgage ;  other- 
wise, if  the  defendant  purchased  and  paid  for  the  land,  so 
that  the  contract  was  complete  and  ended,  and  by  a  sub- 
sequent transaction  mortgaged  it.  In  the  latter  case,  his 
remaining  in  possession  and  holding  out  against  the  mort- 
gagee, instead  of  being  tin  affirmance  of  the  mortgage,  would 
be  an  express  denial  of  its  validity,  and  a  resistance  of  the 
attempt  to  enforce  a  claim  under  it;  while,  at  the  same  time, 
such  possession  and  claim  of  the  land,  after  arriving  of  age, 
would  be  an  affirmance  of  the  original  contract  of  purciiase. 

43.  A  mortgage,  like  other  contracts  and  securities,  may 

1  Ellis  V.  Messervie,  11  Paige,  467.        «  Story   v.  Johnson,   2   Y.  &   CoU. 
See  Atterbury  u.  Willis,  39  Eng.  L.  &     (Exch.)  580 
Eq.  175  ;  Mills  v.  Mills,  26  Conn.  213.  "  10  N.  H.  561. 

■^  Cheslyn  i-.  Dalby,  2  Y.  &   Coll. 
(Exch.)  170. 


646  THE   LAW    OF   MORTGAGES.  [CH.  XXI. 

be  void  as  repugnant  to  the  provisions  of  bankrupt  or  insol- 
vent laws. 

44.  A  bond  of  defeasance,  executed  and  recorded  together 
with  a  deed  of  land  made  to  secure  a  debt,  was  delivered  by 
the  grantor  to  another  creditor,  and  the  first  creditor,  on  re- 
ceiving, from  the  second,  payment  of  his  debt,  conveyed  the 
land  to  him,  and  the  second  creditor  gave  the  debtor  a  new 
bond  of  defeasance  conditioned  for  the  payment  of  the 
amount  of  both  debts.  Held,  that  this  transaction,  although 
made  to  secure  the  debt  of  the  second  creditor  in  violation 
of  the  insolvent  laws,  gave  him  the  right  to  hold  the  land 
against  the  debtor's  assignee  in  insolvency,  as  security  for 
the  amount  paid  by  him  to  the  first  creditor.^ 

Judd  V.  Flint,  4  Gray,  557. 


CH.  XXII.]  EQUITABLE   MORTGAGE,   ETC.  G47 


CHAPTER  XXII. 

EQUITABLE   MORTGAGE.  —  DEPOSIT   OF   TITLE-DEEDS. 

1.  Equitable  liens.  ,      4.  Decisions,  establishing   the  doc- 

A.  Deposit  of  deeds  ;    constitutes  a     trine, 
mortgage ;   establishment  of  the  doc-        5.  General  rules  and  principles 
trine  ;  case  of  Russd  v.  Russd.  12.  American  doctrine. 

3.  Qualifications  and  criticisms  of  17.  Effect  upon  the  title  of  a  mort- 
tlie  rule;  remarks  of  judges  and  el-  ,  gagee,  of  leaving  the  deeds  in  the 
ementary  writers.  i  hands  of  the  mortgagor,  and  a  deposit 

I  by  him. 

1.  In  addition  to  the  actual,  conditional  conveyance  of 
land,  which  constitutes  a  legal  mortgage  ;  courts  of  equity- 
have  recognized  certain  other  liens,  arising  from  the  implied 
agreement  of  parties,  or  the  justice  of  the  case,  but  not 
depending  upon  any  express  transfer  of  title.  These  are 
usually  termed  equitable  mortgages,  {a)  One  of  these  liens 
will  be  considered  in  the  present  chapter. 

2.  It  is  a  doctrine  of  the  Court  of  Chancery,  in  England, 
that  a  deposit  of  the  title-deeds  of  an  estate  with  a  creditor 
of  the  owner  constitutes  a  mortgage  of  the  land,  as  against 
such  owner,  or  any  purchaser  from  him,  having  actual  or 
implied  notice ;  and  that  such  mortgage  may  be  enforced  by 
a  bill  and  decree  for  sale  or  foreclosure.  The  rule  is  said  to 
have  originated  in  1783,  and  to  have  always  met  with  .strong 


(a)  In  Florida,  an  equitable  mortgage  requires  a  specific  agreement  of 
the  parties,  and  a  valuable  consideration.  Gotten  v.  Blocker,  6  Flor.  1.  la 
Massachusetts,  the  statute  relating  to  foreclosure  applies  only  to  legal  mort- 
gages.    Wyman  v.  Babcock,  2  Curt.  386. 

An  agreement  by  an  insolvent  debtor,  to  give  a  mortgage  to  preferred 
creditors,  cannot  be  enforced  against  one  holding  a  previous  recorded  mort- 
gage, for  the  benefit  of  all  the  creditors  under  a  subsequent  assignment. 
Bloom  V.  Noggle,  4  Ohio,  N.  S.  45. 


648  THE   LAW    OF   MORTGAGES.  [CII.  XXII. 

opposition  from  eminent  judges  ;  but  to  be  now  well  estab- 
lished in  the  English  law.^  {b)     It  is,  however,  strictly  con- 

1  See  4  Kent,  149,  150. 


(&)  The  following  case  is  said  to  be  the  earliest  one.  in  Avhich  the  doctrine 
was  definitely  settled;  and,  as  will  be  seen,  though  held  a  binding  authority 
in  subsequent  cases,  the  principle  of  it  has  been  often  very  seriously  ques- 
tioned. 

In  Russel  v.  Russel,  1  Bro.  238,*  a  lease  was  pledged,  by  one  who  after- 
wards became  bankrupt,  to  the  plaintifi",  as  security  for  a  loan  and  other 
indebtedness.  The  pledgee  brings  a  bill  for  a  sale,  claiming  a  lien  on  the 
estate,  which  was  resisted  by  the  assignee,  on  the  ground  that  it  would  be 
charging  the  land  without  writing,  contrary  to  the  statute  of  frauds.  Lord 
Loughborough  :  —  "In  this  case,  it  is  a  delivery  of  the  title  to  the  plaintiff 
for  a  valuable  consideration.  The  Court  has  nothing  to  do  but  to  supply 
the  legal  formalities.  In  all  these  cases  the  contract  is  not  to  be  performed, 
but  is  executed."  Ashurst,  Lord  Commissioner: — "  AVhere  the  contract 
is  for  a  sale,  and  is  admitted  so  to  be,  it  is  an  ecpiivocal  act  to  be  explained, 
whether  the  party  was  admitted  as  tenant  or  as  purchaser.  So  here  it  is 
open  to  explanation,  upon  wliat  terms  the  lease  was  delivered."  An  issue 
was  directed,  to  try  whether  the  lease  was  deposited  as  a  security  for  the 
sum  advanced  ;  and  the  jury  found  that  it  was. 

In  Ex  parte  llaigh,  11  Ves.  403,  404,  and  note.  Lord  Eldon  expressed 
his  regret  at  the  establishment  of  this  rule  ;  remarking  that  it  had  led  to 
discussion  upon  the  truth  and  probability  of  evidence  which  it  was  the  very 
object  of  the  statute  of  frauds  entirely  to  exclude. 

In  Norris  v.  Wilkinson,  12  Ves.  197-199;  (ace.  Chapman  v.  Chapman, 
3  Eng.  Law  &  Eq.  70,)  Sir  William  Grant  remarked  upon  this  subject  sub- 
stantially as  follows.  The  mere  fact  that  one  man's  title-deeds  are  found 
in  another's  possession,  is  not  conclusive  of  any  purpose  to  mortgage  the 
estate.  It  may  exist  without  any  contract  whatever.  If  the  deposit  is  made 
when  the  money  is  advanced,  the  purpose  must  obviously  be,  to  secure  re- 
payment, and  there  is  little  to  be  supplied  by  other  evidence.  The  connec- 
tion is  not  so  direct,  between  a  debt  antecedently  due  and  a  subsequent 
deposit;  nor  is  the  inference  so  plain.     And  where  the  deeds  are  delivered, 

*  A  note  to  this  case  says,  that  previously  tlie  point  was  much  doubted.  It  was  the 
lirst  determination  on  tlie  Bubject,  and  tliough  confirmed  (after  tlie  result  of  the  in- 
quiry, see  9  Ves.  117,)  by  Lord  Thurlow,  and  often  followed,  has  been  uniformly  dis- 
approved  of  upon  princijjle,  for  the  most  important  reasons.  It  seems,  from  the  cases, 
the  Court  will  not  allow  tlie  deposit  to  be  a  security  for  future  advances,  without  the 
most  distinct  evidence  of  an  agreement  for  tlie  purpose. 


en.  XXII. J  EQUITABLE   MORTGAGE,   ETC.  649 

strued,  and  \vill  not  be  extended  by  any  implication.  Thus, 
it  is  held,  that  all  the  deeds  must  be  actually  and  bond  fide 
deposited  with  the  mortgagee  himself,  and  the  principle,  that 
equity  will  consider  that  as  done  which  ought  to  be  done, 
does  not  apply,  unless  the  Court  in  which  relief  is  sought  has 
jurisdiction  of  the  case,  and  authority  to  order  that  the  act 
be  done.  A  mere  parol  agreement  to  deposit  deeds  does 
not  fall  within  this  rule.^     But,  in  a  late  case,  a  person,  at 

1  4  Kent,  149,  150  ;  Clabaugli  r.  By-     27  Kno;.  Law  &  Eq.  178  ;  Janus  v.  Rice 
erly,  7  Gill,  354.     Sec  Price  v.  Bury,     Ibid.  342. 


not  as  a  present  security,  but  only  for  the  purpose  of  enabling  the  attorney 
to  draw  a  mortgage,  which  has  been  agreed  for,  the  principle  is  wliolly  inap- 
plicable. The  deposit  of  deeds  is  indeed  held  to  imply  an  obligation  to 
execute  a  conveyance,  whenever  required.  But  in  such  case  the  primary 
intention  is,  to  execute  an  immediate  pledge  ;  with  an  implied  engagement 
to  do  whatever  may  be  necessary  to  render  the  pledge  etfectual  for  its  pur- 
pose. But  in  the  case  supposed,  there  was  no  intention  to  put  tiie  deeds 
into  pledge.  Nor  does  the  death  of  the  owner,  before  making  the  proposed 
mortgage,  give  any  effect  to  the  transaction  as  a  deposit. 

In  Hooper,  ex  parte,  19  Ves.  477,  a  mortgagee  for  a  term  made  further 
advances,  and  died.  The  mortgagor  having  become  bankrupt,  the  execu- 
tors of  the  mortgagee  filed  a  petition,  alleging  an  understanding  and  agree- 
ment, that  the  sum  due  for  further  advances  should  be  tacked,  and  a  further 
mortgage  made  therefor,  and  praying  a  sale.  Lord  Eldon  said  (Ibid.  478, 
479)  : — "With  great  deference  to  Lord  Thurlow,  who  first  held  tiiat  the 
deposit  of  a  deed  necessarily  implied  an  agreement  for  a  mortgage,  I  repeat, 
that  this  decision  has  produced  considerable  mischief;  and  that  the  case  of 
llussel  v.  Russel  ought  not  to  have  been  decided  as  it  was.  There  never 
was  a  case,  where  a  man,  having  taken  a  mortgage  by  a  legal  conveyance, 
was  afterwards  permitted  to  hold  that  estate  as  further  charged,  not  by  a  legal 
contract,  but  by  inference  from  the  possession  of  the  deed.  The  other  cases 
have  gone  far  enough,  indeed  too  far;  and  I  will  not  add  to  their  authority^ 
where  there  are  circumstances  distinguishing  the  case  belbre  me."*  The 
order  was  confined  to  the  legal  mortgage. 

*  In  the  same  case  Lord  Eldon  further  remarked,  ihat  it  was  an  en-or  to  suppose, 
that  a  deposit  of  deeds  can  refer  to  nothing  but  .an  intention  to  subject  the  estate.  A 
deposit  may  be  of  considerable  use.  without  any  such  object.  The  right  to  hold  the 
deeds,  and  so  to  work  out  payment,  is  of  great  value. 

In  Whitbre.ad"s  case,  (19  Ves.  211.)  Lord  Eldon  is  reported  to  have  said,  that  the 
decisions  upon  this  subject  amount  to  a  repeal  of  the  statute  of  frauds. 

VOL.  I.  55 


650  THE  LAW  OF  MORTGAGES.         [CH.  XXII. 

the  same  time  that  he  gave  a  note  for  money  borrowed  at  X6 
per  cent,  interest,  deposited  title-deeds  of  land  as  a  further 
security,  and  upon  a  further  advance  entered  into  a  parol 
agreement  with  the  lender,  to  execute  a  mortgage  of  the  same 
lands  as  a  security  for  the  whole  amount  at  £5  per  cent. 
The  deeds  were  not  at  that  time  and  on  that  occasion  deliv- 
ered by  the  borrower  to  the  lender,  but  had  remained  in  the 
lender's  possession  from  the  time  of  the  former  transaction. 
Held,  although  the  original  deposit  was  invalid  for  usury, 
yet  the  parol  agreement  created  a  good  equitable  mortgage.^ 
3.  It  is  remarked  by  a  late  writer,^  "  On  a  review  of  the 
decided  cases,  establishing  this  mode  of  mortgage  security, 
it  is  perhaps  to  be  regretted,  that  the  old  law  was  not  ad- 
hered to,  and  the  principle  on  which  the  statute  of  frauds 
was  founded  more  respected.  For  although  equity,  by  de- 
claring the  deposit  itself  to  be  evidence  of  an  agreement 
executed,  has  contrived  to  evade  the  strict  and  literal  word- 
ing of  the  statute,  yet  it  is  manifest  that  the  door  has  been 
in  some  degree  open  to  fraud  and  perjury  ;  nor  does  a  cred- 
itor seem  to  deserve  much  favor,  who  will  not  be  at  the 
trouble  of  a  few  lines  in  writing,  if  he  is  desirous  to  have  a 
charge  on  his  debtor's  estate.  If  the  debtor  denies  that  the 
deposit  was  intended  to  cover  future  advances,  or  if  he  in- 
sist that  the  deeds  were  not  delivered  by  way  of  deposit,  but 
with  a  different  intent,  resort  must,  in  many  cases,  be  had  to 
parol  evidence  ;  and,  as  remarked  by  Lord  Eldon,  '  the  mis- 
chief of  all  these  cases  is,  that  the  Court  is  deciding  upon 
parol  evidence  with  regard  to  an  interest  in  land  within  the 
statute  of  frauds.' "  So  Judge  Story  says  :  ^  —  "It  is  now 
settled  in  England,  that  if  the  debtor  deposits  his  title-deeds 
to  an  estate  with  a  creditor,  as  security  for  an  antecedent  debt, 
or  upon  a  fresh  loan  of  money,  it  is  a  valid  agreement  for  a 
mortgage  between  the  parties,  and  is  not  within  the  opera- 
tion of  the  statute  of  frauds.  This  doctrine  has  sometimes 
been  thought  difficult  to   be    maintained,  either  upon  the 

1  James  v.  Rice,  27  Eng.  Law  &  Eq.  2  Coote,  222. 

342.  3  2  Story's  Eq.  §  1020. 


CH.  XXII.]  EQUITABLE   MORTGAGE,   ETC.  651 

ground  of  principle  or  of  public  policy.  And  although  it  is 
firmly  established,  it  has  of  late  years  been  received  with  no 
small  hesitation  and  disapprobation,  and  a  disposition  has 
been  strongly  evinced,  not  to  enlarge  its  operation.  It  is  not 
therefore  ordinarily  applied  to  enforce  parol  agreements  to 
make  a  mortgage,  or  to  make  a  deposit  of  title-deeds  for 
such  a  purpose ;  but  it  is  strictly  confined  to  an  actual,  im- 
mediate, and  bond  fide  deposit  of  the  title-deeds  with  the 
creditor,  as  a  security,  in  order  to  create  the  lien.  Such  an 
equitable  mortgage  will  not,  however,  avail  against  a  sub- 
sequent mortgagee,  whose  mortgage  has  been  duly  regis- 
tered, without  notice  of  the  deposit  of  the  title-deeds." 

4.  Notwithstanding  these  very  reasonable  strictures,  how- 
ever, a  long  series  of  cases  seems  to  have  fully  established 
the  doctrine  above  stated,  as  a  rule  of  English  equity  juris- 
prudence. It  is  unnecessary  to  cite  ail  of  them ;  but  some 
of  the  principal  will  be  summarily  referred  to.  (c) 


(c)  In  RoUeston  v.  Morton,  1  Dr.  &  War.  195,  the  Lord  Chancellor  of 
Ireland  said :  "  If  a  man  has  power  to  charge  certain  lands,  and  agrees  to 
charge  them,  in  equity  he  has  actually  charged  them,  and  a  court  of  equity 
will  execute  the  charge." 

In  Keys  v.  Williams,  3  Y.  &  Coll.  Exch.  60,  61,  Lord  Abiuger  thus  very 
ingeniously  vindicates  the  policy  and  reasonableness  of  the  rule  :  —  "  The 
doctrine  of  equitable  mortgages  has  been  said  to  be  an  invasion  of  the  statute 
of  frauds ;  and  no  doubt  there  was  great  difficulty  in  knowing  how  to  deal  with 
deposits  of  deeds  by  way  of  security  after  the  passing  of  that  statute.  But  in 
my  opinion  that  statute  was  never  meant  to  affect  the  transaction  of  a  man 
borrowing  money  and  depositing  his  title-deeds  as  a  pledge  of  payment.  A 
court  of  law  could  not  assist  such  a  party  to  recover  back  his  title-deeds  by 
an  action  of  trover,'the  answer  to  such  an  action  being,  that  the  title-deeds 
were  pledged  for  a  sum  of  money,  and  that,  till  the  money  is  repaid,  the 
party  has  no  right  to  them.  So,  if  the  party  came  into  equity  for  relief,  he 
would  be  told,  that  before  he  sought  equity  he  must  do  equity,  by  repaying 
the  money  in  consideration  for  which  the  deeds  had  been  lodged  in  the  other 
party's  hands.  The  doctrine  of  equitable  mortgages,  therefore,  appears  to 
have  arisen  from  the  necessity  of  the  case.  It  may,  however,  in  many  cases, 
operate  to  useful  purposes,  and  is  certainly  not  injurious  to  commerce.  In 
commercial  transactions  il  may  be  frequently  necessary  to  raise  money  on  a 


652  THE  LAW   OF   MORTGAGES.  [CH.  XXII. 

5.  The  deposit  may  be  made  either  to  the  creditor  him- 
self, or  to  some  third  person  over  whom  the  depositor  has  no 


sudden,  before  an  opportunity  can  be  afforded  of  investigating  the  title- 
deeds,  and  preparing  the  mortgage.  Expediency,  therefore,  as  well  as  ne- 
cessity, has  contributed  to  establish  the  general  doctrine,  although  it  may  not 
altogether  be  in  consistency  with  the  statute." 

In  Pain  v.  Smith,  2  My.  &  K.  417,  —  (See  Tylee  v.  Webb,  6  Beav.  552 ; 
Lewthwaite  v.  Clarkson,  2  Y.  &  Coll.  Exch.  3  72,)  —  the  plaintiff  filed  a  bill, 
for  the  purpose  of  giving  effect  to  an  equitable  security  made  by  the  deposit 
of  deeds,  and  praying  a  sale  of  the  estate.  Per  Sir  John  Leach,  M.  R. :  "  If 
the  contract  between  the  plaintiff  and  the  defendant  had  been,  that  the 
deeds  should  be  deposited  as  a  security  until  a  legal  mortgage  could  be  pre- 
pared, there  would  be  ground  for  the  argument  of  the  defendant ;  "  (namely, 
that  if  a  sale  were- decreed,  an  equitable  mortgagee  would  be  in  better  situa- 
tion than  a  legal  mortgagee.)  "  But  there  being  here  a  general  equitable 
charge  upon  the  property,  the  plaintiff  is  entitled  to  a  sale  for  satisfaction  of 
that  charge,  and  such  has  been  the  constant  course  of  the  Court." 

In  Mandeville  v.  Welch,  5  Wheat.  284,  Judge  Story  says :  "  It  may  be 
admitted,  that  according  to  the  course  of  the  authorities  in  England,  and  as 
applicable  to  the  state  of  land-titles  there,  a  deposit  of  title-deeds  does,  in  the 
cases  alluded  to,  create  a  lien,  which  will  be  recognized  as  an  equitable 
mortgage,  and  will  entitle  the  party  to  call  for  an  assignment  of  the  property 
included  in  the  title-deeds.  The  doctrine  proceeds  upon  the  supposition, 
that  the  deposit  is  clearly  established  to  have  been  made  as  security  for  the 
debt;  and  not  upon  the  ground  that  the  mere  fact  of  a  deposit  unexplained 
affords  such  proof" 

Where,  in  order  to  prevent  immediate  proceedings  against  a  debtor,  he 
deposited  his  title-deeds  with  the  attorney  of  his  creditor,  for  the  purpose  of 
preparing  a  mortgage  ;  held,  an  equitable  mortgage  of  the  estate.  Keys  v. 
Williams,  3  Y.  &  Coll.  Exch.  55.  Lord  Abinger  says,  (Ibid.  61,  62)  :  "  It  has 
been  very  ably  argued,  that  the  circumstance  of  the  deed  having  been  depos- 
ited, not  as  a  present  security,  but  with  a  view  to  a  future  security,  gives  rise 
to  such  a  distinction.  Certainly,  if  before  the  money  was  advanced  the  deeds 
had  been  deposited  with  a  view  to  prepare  a  future  mortgage,  such  a  trans- 
action could  not  be  considered  as  an  equitable  mortgage  by  deposit ;  but  it 
is  otherwise  where  there  is  a  present  advance,  and  the  deeds  are  deposited 
under  a  promise  to  forbear  suing,  although  only  for  the  purpose  of  preparing 
a  future  mortgage.  If  it  were  necessary  to  decide  the  specific  point,  I  should 
say,  that  an  agreement  to  grant  a  mortgage  for  money  already  advanced,  and 
a  deposit  of  deeds  for  the  purpose  of  preparing  a  mortgage,  is,  in  itself,  an 
equitable  mortgage  by  deposit ;  but  here  the  deposit  was  evidently  made  as 


CH.  xxil]  equitable  mortgage,  etc.  653 

control.     But  not  to  the  wife  of  the  depositor,  nor  a  forliori 
if  permitted  to  be  retained  by  the  debtor,  though  he  dcUvcr 


a  present  security,  as  well  as  with  a  view  of  preparing  a  future  niortfa"c. 
In  default  of  payment  of  principal  and  interest,  within  the  usual  time,  a  s.ilc 
must  take  place." 

In  Hockley  v.  Bantock,  1  Russ.  141,  executors  and  trustees  agreed  to 
give  a  residuary  legatee,  as  security  for  his  share,  a  legal  mortgage  of  real 
estate,  whkh  they  had  taken  for  a  debt  due  to  the  testator,  and,  for  the  pur- 
pose of  having  the  mortgage  prepared,  delivered  the  title-deeds  to  the  agents 
of  the  legatee.  Held,  he  thereby  acquired  an  equitable  lien  as  against  the 
executors,  though  not  as  against  the  other  legatees. 

In  Hodge  o.  Attorney-General,  3  Y.  &  Coll.  Exch.  342,  the  title-deeds  of 
a  leasehold  estate  were  depcfeited  with  bankers,  by  way  of  equitable  mort- 
gage, to  secure  the  balance  of  a  running  account.  The  debtor  being  after- 
wards convicted  of  felony,  the  creditors  filed  a  bill  against  the  Attorney- 
general  for  a  sale.  Held,  the  legal  title  being  in  the  Crown,  the  Court  could 
not  decree  a  sale,  nor  a  conveyance  of  the  legal  title,  but  only  declare  the 
plaintiffs  entitled  to  possession,  till  the  Crown  should  redeem. 

In  VVhitworth  u.  Gaugain,  3  Hare,  416,  424,  429,  it  was  held,  that  an 
equitable  mortgagee,  by  deposit  of  title-deeds,  might  enforce  his  lieu  in  pref- 
erence to  another  creditor,  who  subsequently,  without  notice,  recovered  judg- 
ment against  the  debtor,  and  obtained  possession  by  writ  of  elegit  and 
attornment  of  the  tenants.  Shad  well,  V.  C,  says  :  "  The  plaintiS's  arc  equi- 
table mortgagees,  by  a  deposit  of  title-deeds,  accompanied  with  a  memoran- 
dum in  writing,  exjjlaining  that  the  purpose  of  the  deposit  was  to  secure  a 
then  existing  debt  and  future  advances.  No  one,  I  apprehend,  could  se- 
riously contend  that  the  memorandum  in  writing  above  set  forth  had  not  the 
effect  of  charging^the  property  as  between  the  mortgagees  and  the  mort- 
gao-or."  His  Lordship  proceeds  to  lay  down  the  established  principle,  that  a 
judgment  creditor  stands  in  place  of  the  debtor,  and  can  take  in  execution 
only  what  belongs  to  him,  subject  to  every  liability  binding  upon  the  debtor 
himself.  This  principle  applies  to  all  other  equitable  incumbrancers,  and 
should  therefore  be  held  alike  applicable  to  an  equitable  mortgagee,  whose 
title  is  no  more  imperfect  than  that  of  a  cestui  que  trust.  His  Lordship  fur- 
ther remarked,  that  the  argument,  of  the  judgment  creditor's  having  an 
equal  equity,  and  in  addition  the  legal  title,  and  therefore  a  right  which 
ouo-ht  to  prevail  over  the  plaintiff's,  took  for  granted  the  whole  question  in 
dispute,  assuming  that  the  creditor  might  seize  what  did  not  actually  belong 
to  the  debtor. 

A.,  insisting  that  B.,  the  owner  of  an  agreement  for  a  building  lease, 
55* 


654  THE  LAW  OP  MORTGAGES.         [CH.  XXII. 

to  the  creditor  a  memorandum  to  that  effect.  Nor  will  the 
equitable  deposit  in  the  hands  of  one  person  be  extended  to 
an  advance  made  by  another,  unless  the  party  holding  the 
deeds  is  a  mere  trustee  and  has  made  no  advances.^  So,  in 
Brizick  v.  Manners,^  the  owner  of  land  delivered  his  title- 
deeds  to  an  attorney  for  the  purpose  of  having  a  mortgage 
drawn,  but  died  before  its  completion.  The  creditor  at- 
tempted to  establish  a  title  as  equitable  mortgagee,  but  the 
point  was  given  up. 

6.  An  equitable  mortgagee  may  himself  create  an  equita- 
ble mortgage,  by  a  deposit  of  the  deeds,  though  he  does  not 
deliver  over  the  memorandum.^ 

7.  A  mere  deposit,  without  &  memorandum,  will  create 
an  equitable  mortgage,  as  against  strangers,  only  when  the 
possession  of  the  title-deeds  can  be  accounted  for  in  no  other 
way,  or  the  holder  is  a  stranger  to  the  title  and  the  lands."* 

8.  Such  mortgage  has  preference  over  a  subsequent  pur- 

1  Coote,  217.  -  9  Mod.  284.  ^  Coote,  221.  *  IbiJ.  217. 


had  deposited  it  to  secure  to  him  £900,  claiaied  payment  from  the  ad- 
ministrator of  B.,  who  had  expended  his  own  money  in  finishing  the  houses, 
and  obtained  leases  from  the  lessors,  and  questioned  the  deposit  and  the 
extent  of  the  advance,  if  any  had  been  made.  Held,  the  affidavits  proving 
a  deposit,  the  Court  was  bound  to  act  upon  them ;  that  the  deposit  entitled 
A.  to  a  mortgage,  and  gave  him  a  right  to  payment.  Deci'ee  for  an  account 
and  sale  of  the  houses.     Sims  v.  Helling,  9  Eng.  Law  &  Eq.  45. 

In  Ex  parte  Langston,  17  Ves.  230,  on  the  14th  of  June,  title-deeds  were 
deposited  as  security  for  advances.  Between  this  time  and  June  20,  fur- 
ther advances  were  made,  and  on  tlie  latter  day  a  memorandum  was  signed 
by  the  debtor,  stating  that  the  deposit  was  made  to  secure  the  several  ad- 
vances. The  same  day,  he  became  bankrupt.  Held,  the  memorandum 
could  not  prejudice  the  creditor's  claim,  being  perfectly  consistent  with  it, 
and  a  ratification  of  the  prior  agreement ;  and  that  he  was  entitled  to  hold 
the  deeds  as  security. 

Mortgage  by  deposit,  to  secure  the  debtor's  account,  until  such  account 
should  not  exceed  £100.  The  debtor  having  died,  owing  more  than  that 
sum ;  held,  the  deposit  was  a  security  for  the  whole  sum,  and  not  merely  for 
the  excess  over  £100.     Ashton  v.  Dalton,  2  Coll.  565. 


CH.  XXII.]  EQUITABLE   MORTGAGE,   ETC.  655 

chaser  or  mortgagee  of  the  legal  estate  with  nolice.  And 
notice  will  be  implied  from  the  nature  of  the  transaction  ;  as, 
if  the  latter  was  informed  that  the  creditor  had  possession  of 
the  deeds,  and  neglected  to  inquire  for  what  purpose  ;  this 
being  gross  negligence.^  But  this  rule  does  not  apply,  where 
the  holder  of  the  deeds  is  solicitor  of  the  debtor ;  such  de- 
posit being  in  this  case  according  to  the  usual  course  of 
business.^ 

9.  Such  deposit  gives  a  lien  upon  all  the  property  iiichidcd 
in  the  deeds,  unless  an  intention  is  clearly  proved  to  the  con- 
trary.^ 

10.  With  regard  to  the  mode  of  foreclosing  a  mortgage  of 
this  description,  Mr.  Coote  says,  the  proper  decree  would 
seem  to  be  for  a  foreclosure  and  conveyance.  The  right  to  a 
sale  does  not  appear  so  clear,  though  in  some  cases  a  sale 
has  been  decreed.  Such  right  clearly  exists,  where  the  mem- 
orandtjim  of  deposit  provides  for  a  formal  mortgage  ivith 
power  of  sale,  or  where  the  bill  is  filed  against  the  represen- 
tatives of  one  deceased.  So  a  sale  woiild  seem  proper,  when 
the  defendants  are  infants.* 

11.  Six  months  will  be  allowed  for  redemption,  although 
from  the  nature  of  the  transaction  no  interest  is  due.^ 

12.  With  regard  to  the  American  doctrine  upon  this  sub- 
ject, Mr.  Greenleaf  remarks:*^  —  "Whether  the  deposit  of 
title-deeds  alone  will  create  an  equitable  lien  on  the  land,  in 
any  of  the  United  States,  may  well  be  doubted.  No  case  is 
found,  in  which  this  doctrine  has  been  actually  administered, 
though  in  several  cases  it  has  been  adverted  to,  as  a  rule  of 
law  in  England." 

13.  In  New  York,^  where  there  had  been  an  advance  of 
money,  and  the  title-deeds  were  found  in  possession  of  the 
lender,  there  was  held  to  be  an  equitable  mortgage.  So  the 
deposit  of  a  bond  and  accompanying  mortgage  of  leasehold 
property,  (given  without  consideration,  for  the  purpose  of 

1  Hiern  v.  Mill,  13  Ves.  114.  "  Coote  220. 

'■2  Bozon  V.   Williams,  3  Y.  &  Jerv.  ^  Ibid.  221. 

l^Q  6  2  Greenl.  Cruise,  So,  n. 

3  ■  Ashton  V.  Dalton,  2  Coll.  565.  ^  Rockwell  v.  Hobby,  2  Sandf.  Cli .  9. 


656  THE  LAW  OF  MORTGAGES.         [CH.  XXII. 

raising  money,)  as  security  for  a  loan,  has  been  held  to  give 
a  claim  by  the  assignee  against  the  mortgagor.^  But  it  has 
been  very  recently  decided  in  that  State,  that  an  instrument 
in  the  form  of  a  mortgage,  but  naming  no  mortgagee,  is  not 
a  valid  security,  in  the  hands  of  one  who  advances  money, 
upon  the  agreement  that  he  shall  hold  it  as  such  security.^ 
In  a  recent  case  in  Rhode  Island,  it  has  been  held,  that  the 
deposit  of  a  conveyance  of  an  estate  as  security  for  the 
amount  of  a  mortgage  upon  such  estate,  which  is  relin- 
quished by  the  mortgagee  to  the  depositor  to  enable  him 
to  obtain  the  title  from  the  holder  of  the  equity  of  redemp- 
tion, constitues  an  equitable  mortgage  as  between  the  orig- 
inal parties  and  those  subject  to  their  equities,  which  a  court 
of  equity  will  establish  and  enforce  by  a  sale  of  the  deposi- 
tor's interest,  and  the  interest  of  those  holding  the  legal  title 
for  him,  or  subject  to  his  equity  ;  especially  if  necessary  to 
prevent  a  gross  fraud  and  breach  of  trust  from  beings  prac- 
tised by  the  purchaser  upon  the  mortgagee.^ 

14.  It  has  been  held  in  Maine,  that  a  grantee,  whose  deed 
is  not  recorded,  cannot  create  an  equitable  mortgage  by  a 
pledge  of  the  deed,  and  thus  defeat  a  prior  recorded  mort- 
gage.* 

15.  In  Mississippi,  a  party  carmot  encumber  his  estate  for 
a  longer  term  than  one  year,  by  deposit  of  title-deeds.^ 

16.  In  California,  delivering  of  the  title-deeds,  under  a 
verbal  contract  for  the  sale  of  lands,  is  equivalent  to  pos- 
session by  the  vendee.^ 

17.  In  analogy  with  the  doctrine  above  stated,  there  seems 
to  have  been  an  ancient  rule  in  Chancery,  that  if  a  first  mort- 
gagee voluntarily  left  the  title-deeds  with  the  mortgagor,  he 
should  be  postponed  to  a  subsequent  mortgagee,  without 
notice,  and  in  possession  of  the  deeds  ;  because  he  thereby 
enabled  the  mortgagor  to  impose  upon  others,  who,  in  the  ab- 
sence of  any  registry,  looked  for  their  security  only  to  the  deed 

]  Day  V.  Perkins,  2  Sandf.  Cli.  359.  "  Hall  v.  McDuff,  11  Shepl.  311. 

'^  Chauncey   v.   Arnold,    Law   Reg.  ^  Gothard  v.  Flynn,  25  Miss.  58. 

March,  1863,  p.  317,  10  Smith.  6  Tohler  v.  Folsom,  1  Cal.  207. 
8  Hackett  v.  Reynolds,  4  R.  I.  512. 


CH.  XXII.]  EQUITABLE   MORTGAGE,   ETC.  057 

and  the  mortgagor's  possession.  Thus,  in  Head  v.  Egcrton,^ 
the  Lord  Chancellor  said,  it  was  hard  enough  upon  a  subse- 
quent mortgagee,  that  he  had  lent  his  money  upon  lands  sub- 
ject to  a  prior  mortgage,  without  notice  of  it,  and  therefore 
he  could  not  add  to  his  hardship,  by  taking  away  from  him 
the  title-deeds  and  giving  them  to  the  elder  mortgagee,  un- 
less the  first  mortgagee  paid  him  his  money  ;  especially  as 
the  first  mortgagee,  by  leaving  the  title-deeds  with  the  mort- 
gagor, had  been  in  some  measure  accessory  in  drawing  in 
the  defendant  to  lend  his  money.  But  Chancellor  Kent, 
upon  a  review  of  the  cases,  denies  the  existence  of  any  such 
rule  ;  or  that  it  is  now  in  force,  if  ever  adopted  ;  and  lays  it 
down  as  the  settled  principle  on  the  subject,  that  a  subse- 
quent mortgage  shall  not  have  priority  for  the  reason  stated, 
unless  in  case  of  fraud  or  gross  negligence,  or  a  voluntary, 
distinct,  and  unjustifiable  concurrence,  on  the  part  of  the  first 
mortgagee,  to  the  retaining  of  the  deeds.  More  especially 
is  the  rule  inapplicable  in  the  United  States,  where  deeds  are 
uniformly  recorded.  Hence  it  was  held,  that,  in  case  of  the 
mortgage  of  a  leasehold  estate,  leaving  the  lease  with  the 
mortgagor  was  no  evidence  of  fraud,  because  registration  is 
a  beneficial  substitute  for  the  deposit  of  the  deed,  and  gives 
better  and  more  effectual  security  to  subsequent  mortga- 
gees.2  So  Judge  Story  says:  —  "In  cases  not  affected  by 
the  registry  acts,  the  mere  fact,  that  a  first  mortgagee  has 
left  the  title-deeds  in  the  possession  of  the  mortgagor,  with- 
out any  attendant  circumstances  of  fraud,  will  not  be  suffi- 
cient to  postpone  such  first  mortgagee  to  a  second,  who  has 
taken  the  title-deeds  with  his  mortgage,  without  any  notice 
of  the  prior  mortgage."  ^  And  it  is  remarked  by  Mr.  Coote, 
that  the  question,  how  far  possession  of  the  title-deeds  gives 
a  subsequent  mortgagee  the  preference  over  a  prior  one,  has 
been  one  of  frequent  discussion.    The  principle  to  be  derived 

1  3  p  Wilis  "^yg  233.     See  Ryall  v.  Rolle,  1  Atk.  168; 

2  BeiTV  V.  Mutual,  &c.,  2  Johns.  Ch.  1  Ves.  360  ;  Atterbury  v.  Wilhs,  3<) 
608,  609  ;  Jolinson  v.  Stagg,  2  Johns.  Eng.  L.  &  M-  1-5 ;  Colyer  v.  Finch, 
510 ;  ace.  Van  Meter  v.  McFaddin,  8  B.  39  Eng  L.  &  Eq.  ». 

Hon.  435 ;  Shitz  v.  DieflFenbach,  3  Barr,        ^  2  Story  s  Eq.  §  lOJU. 


658  THE   LAW   OF  MORTGAGES.  [CH.  XXII. 

from  the  cases  is  said  to  be,  that  want  of  possession  of  the 
title-deeds  by  the  first  mortgagee  is  open  to  explanation,  and 
is  only  prima  facie,  not  conclusive  evidence  of  fraud.^  So 
it  has  been  very  recently  held,  that  a  legal  mortgagee  will 
not  be  postponed  to  a  prior  equitable  one,  on  the  ground  of 
not  having  got  in  the  title-deeds,  unless  guilty  of  fraud  or 
gross  or  wilful  negligence.  As  where  he  has  made  bond  fide 
inquiry  for  them,  and  received  a  reasonable  excuse  for  their 
non-delivery .2  {d) 

1  Coote,  486.  2  Hewitt  v.  Loosemore,  9  Eng.  Law  &  Eq.  35. 


((5?)  The  doctrine  above  referred  to,  as  to  the  effect  of  depositing  title- 
deeds,  has  been  stated  as  a  rule  of  equity.  Questions  upon  the  same  general 
subject  have  sometimes  occurred  in  courts  of  law.  In  Goodtitle  v.  Morgan, 
(1  T.  R.  755,)  it  was  held,  that  a  second  mortgagee,  who  takes  an  assign- 
ment of  a  term  to  attend  the  inheritance,  and  has  all  the  title-deeds,  may 
recover  in  ejectment  against  the  first  mortgagee,  not  having  had  notice  of 
the  prior  mortgage.  Ashurst,  J.,  says,  (lb.  762,)  "No  man  ought  to  be  so 
absurd  as  to  make  a  purchase  without  looking  at  the  title-deeds;  if  he  is,  he 
must  take  the  consequence  of  his  own  negligence.  If  the  first  mortgagee 
had  used  ordinary  precaution,  he  must  have  known  that  this  term  was  then  ■ 
outstanding.  And  if  he  did  know  of  it,  and  neglected  to  take  an  assignment 
of  it,  it  was  enabling  the  mortgagor  to  commit  a  fraud  by  mortgaging  the 
same  estate  again.  By  this,  therefore,  he  became  particeps  criminis."  Bul- 
ler,  J.,  says,  (lb.)  "  It  Is  an  established  rule  In  a  court  of  equity  that  a 
second  mortgagee,  who  has  the  title-deeds,  without  notice  of  any  prior  in- 
cumbrance, shall  be  preferred.  If  this  has  become  a  rule  of  property  in  a 
court  of  equity,  It  ought  to  be  adopted  in  a  court  of  law." 

The  assignees  of  a  bankrupt,  who  owned  the  moiety  of  an  estate  In  a  reg- 
ister county,  brought  assumpsit  for  a  moiety  of  the  rents  against  the  owner 
of  the  other  half,  who  had  received  the  whole  rents.  It  appeared,  that  the 
defendant  had  lent  the  bankrupt  a  certain  sum,  to  complete  his  part  of  the 
purchase.  It  being  agreed  that  the  title-deeds  should  be  deposited  as  security. 
The  defendant  afterwards  took  an  assignment  of  the  bankrupt's  moiety,  but 
the  assignment  was  not  registered.  The  assignment  from  the  commissioners 
to  the  assignees  was  duly  registered,  and  therefore  had  preference  over  the 
unregistered  deed.  Held,  the  action  could  not  be  maintained,  as  the  equit- 
able mortgagee  might  have  retained  the  rents  against  the  bankrupt,  if  he 
had  been  solvent,  and  might  ^therefore  do  the  same  against  his  assignees; 
and  the  requisition  of  registry  did  not  apply  to  an  .equitable  mortgage,  where 
there  was  no  deed  to  be  registered.     Sumpter  v.  Cooper,  2  B.  &  Ad.  223. 


CH.  XXII.]  EQUITABLE   MORTGAGE,   ETC.  659 

In  Harrington  v.  Price,  (3  B.  &  Ad.  170,)  the  vendor  of  an  estate  having, 
upon  a  groundless  pretence,  refused  to  deliver  up  the  deeds ;  the  purchaser 
transferred  his  title,  and  the  assignee  brought  an  action  of  trover  for  the 
deeds,  and  recovered  judgment.  Subsequently  the  first  vendor  deposited  the 
deeds  with  the  defendants,  and  absconded.  The  purchaser  brought  trover 
against  the  defendants,  claiming  that  he  was  entitled  to  them  as  owner  of 
the  estate,  though,  after  the  conveyance  to  him,  they  were  pawned  to  a  third 
person  without  notice.  Held,  although  a  second  mortgagee,  obtainino'  the 
deeds  without  notice,  might  retain  them  against  the  first ;  the  same  rule  did 
not  apply  to  a  prior  purchaser,  because  a  mortgagor  generally  retains  pos- 
session of  the  property,  and  therefore  his  retaining  the  deeds  is  likely  to 
mislead  third  persons  ;  and  that  the  plaintiff  was  entitled  to  recover.  (See 
Hooper  V.  Ramsbottom,  6  Taun.  12 ;  Head  v.  Egerton,  3  P.  Wms.  280.) 

Mr.  Coote  says,  that  previously  to  the  establishment  of  this  doctrine, 
(meaning  the  doctrine  stated  in  the  text,)  it  was  held  that  mere  possession 
of  title-deeds  gave  no  interest  in  the  estate,  except  collaterally,  as  in  the 
instance  put  by  Lord  Eldon  (ex  parte  Whitbread,  19  Ves.  211);  that  is, 
if  the  owner  of  the  land  could  not  part  with  the  estate  without  the  deeds,  he 
should  not  have  them  without  paying  the  debt  due  from  him  to  the  holder ; 
so  that  possession  of  the  deeds  gave  no  direct  interest  in  the  estate,  but  only 
a  power  of  embarrassing  the  property  in  a  sale.     Coote,  214. 


660 


THE   LAW   OF   MORTGAGES. 


[CH.    XXIII. 


CHAPTER   XXIII. 


EQUITABLE  MORTGAGES. 


LIEN  OF  A  VENDOR  FOR  THE  PDRCHASE- 
MONEY. 


1.  General  nature  of  the  lien. 

3.  Remarks  upon  the  policy  of  the 
rule  ;  whether  it  is  consistent  with  the 
general  doctrines  relating  to  real  prop- 
erty. 

7.  The  doctrine  is  well  settled  by 
the  weight  of  authorities. 

8.  Strictures  and  criticisms  of  the 
American  courts.  The  rule  is  not 
adopted  in  some  of  the  States. 

9.  But  it  is  adopted  in  most  of  them  ; 
abstract  of  decisions  upon  the  subject. 

10.  General  nature  of  the  lien ;  an 
equitable  right. 


20.  Against  what  parties  the  lien 
may  be  enforced.  Purchasers  ;  by 
what  notice  they  shall  be  affected. 

27.  Heirs. 

28.  Widow — husband  and  wife. 
30.  Creditors. 

33.  By  whom  the  lien  may  be  en- 
forced. 

37.  Waiver  and  discharge  of  the 
lien  of  a  vendor  for  the  purchase- 
money,  by  taking  security  therefor,  or 
by  other  acts  and  agreements. 

53.  Mode  of  enforcing  the  vendor's 
lien ;  bill,  decree,  &c. 


1.  Another    implied    lien  (a)   upon    real    estate  —  some- 
times, like  that  considered  in  the  last  chapter,  termed  an 


(a)  See  ch.  1,  §  1,  n.  An  express  agreement^  that  land  shall  be  chargeable 
with,  and  security  for,  the  payment  of  a  debt,  though  imperfect  as  a  legal 
mortgage,  will  be  regarded  as. a  mortgage  in  equity,  and  enforced  against  a 
purchaser  with  notice.  Davis  v.  Clay,  2  Mis.  161  5  Johnson  v.  Slawson,  1 
Bai.  Ch.  463. 

A  recital  in  the  deed,  that  the  vendor  has  a  lien,  so  that  the  land  cannot 
be  sold  until  the  notes  are  paid,  shows  that  the  lien  exists,  and  is  not  to  be 
contradicted  by  proof  of  a  parol  agreement  that  there  should  be  no  lien. 
Hutchinson  v.  Patrick,  22  Texas,  318. 

An  agreement  to  make  a  mortgage  does  not  constitute  a  mortgage,  as 
against  subsequent  judgment  creditors.     Price  v.  Cutts,  29  Geo.  142. 

A  written  agreement,  intended  to  give  a  lien  for  security  of  a  debt,  is  a 
good  equitable  mortgage,  though  not  lawfully  witnessed  for  a  conveyance 
of  real  estate.     Abbott  v.  Godfrey,  1  Mann.  (Mich.)  198. 

If  a  school  commissioner  has  sold  school  land,  the  statute  requiring  him 
to  take  a  mortgage  as  security  for  the  purchase-money,  which  he  omits  to 


CH.  XXIII.]     EQUITABLE   MORTGAGES. —  VENDOR'S   LIEN.  GOl 

equitable  mortgage  — \^  the  lien  of  a  vendor  for  I  lie  pnrc/iust- 
7noney.  This  lien  may  properly  be  treated  as  a  mortgage,  both 
because  an  express  mortgage,  as  has  been  abundantly  shown 
in  the  foregoing  pages,  according  to  the  establibhecfniociern 
doctrine  on  the  subject,  creates  no  higher  interest  than  a  lien  ; 
and  because  the  mode  of  enforcing  the  lien  in  questPon,  and 
the  general  rights  and  remedies  incident  to  it,  are  substan- 
tially similar  to  those  created  by  an  express  mortgage,  {b) 

2.  It  has  been  already  remarked,  {supra,  pp.  1,  2,)  that  one 
of  the  most  common  occasions  for  executing  a  mortgage 
occurs,  where  a  conveyance  of  land  is  made,  and  a  mortgage 
of  the  same  land  at  the  same  time  taken  back  by  the  grantor, 
to  secure  the  whole  or  part  of  the  purchase-money.  The 
lien,  to  be  considered  in  the  present  chapter,  is  a  title  sub- 
stantially corresponding  with  that  created  by  such  a  mort- 
gage, but  arising  by  implication  merely,  and  not  depending 
upon  any  deed  or  written  instrument  whatever.  The  doc- 
trine of  equity  is,  that  a  vendor  of  real  estate,  either  merely 
selling,  or  both  selling  and  conveying  the  property,  without 
receiving  payment  of  the  purchase-money,  retains  a  lien  upon 
it  as  security  for  such  purchase-money,  or  so  much  of  it  as 
remains  unpaid.^  "  It  has  become  one  of  the  best  estab- 
lished principles  of  natural  equity  —  that  estates  are  to  be 
regarded  as  unconscientiously  obtained,  when  the  consid- 
eration is  not  paid."  '^ 

3.  The  mere  statement  of  this  rule,  in  its  general  terms, 
is  sufficient  to  show,  that  it  is  an  anomaly  in  the  law  of  real 
property;  certainly  in   that  branch  of  the  law,  as  modified 

1  See  Farrar  v.  Winterton,  5  Beav.  -  Per  Potter,  J.,  Warren  c.  Fi-ini,  28 
1 :  Burns  v.  Taylor,  23  Ala.  255.  Barb.  334. 


do,  the  lien  is  not  lost,  and  may  be  enforced  against  sub-^equent  punhasers, 
with  notice,  if  proceedings  are  instituted  for  that  purpose  within  a  reason- 
able time.  School  Trustees  v.  Wright,  12  111.  432.  See  Chew  v.  Barnett, 
11  S.  &  R.  389. 

(b)  See  Haley  v.  Bennett,  5  Port.  452  ;  Irwin  v.  Davidson,  Ired.  Ch.  311  ; 
Kelly  V.  Paine,  18  Ala.  371 ;  Moore  v.  Anders,  14  Ark.  629. 

VOL.  I.  56 


• 

662  THE  LAW  OF  MORTGAGES.        [CH.  XXIII. 

and  established  by  American  statutes  and  judicial  decisions. 
We  have  had  repeated  occasion  to  suggest,  that  notoriety 
ox  publicity  \?>  i\ie  sealed  and  prominent  requisition,  applied 
to  titles  to  real  property  in  the  United  States.  It  is  the 
universal  policy  of  American  law,  to  divest  these  titles  of  all 
secrecy,  so  that  purchasers  or  creditors,  by  resorting  to  a  pub- 
lic and  general  repository  of  deeds,  may  be  able  to  ascertain, 
with  an  assurance  little  short  of  absolute  certainty,  to  whom 
any  particular  estate  belongs,  and  who  therefore  has  power 
himself  to  pass  a  title.  In  the  last  chapter  it  was  shown, 
that  the  mortgage  by  deposit  of  title-deeds^  though  as  fully 
recognized  in  England  as  any  other  form  of  mortgage,  has 
been  repudiated  in  this  country  for  the  reason  above  sug- 
gested ;  its  inconsistency  with  that  registry  system,,  which  now 
constitutes  an  elementary  part  of  our  jurisprudence,  and  is 
undoubtedly  one  of  the  most  useful  innovations  upon  the 
common  law  of  real  property.  It  will  be  seen,  however, 
that  this  consideration,  though  as  forcible  in  the  present 
case  as  in  the  other,  and  though  its  force  has  often  been 
admitted  by  our  courts ;  has  not  proved  sufficient  to  pre- 
vent the  general  adoption  of  the  English  rule. 

4.  Besides  the  objection  to  the  doctrine  in  question,  aris- 
ing from  its  want  of  harmony  with  the  prevailing  policy  of 
American  law,  there  is  no  topic  in  the  law  of  mortgages, 
in  relation  to  which  the  decisions  are  more  confused  and 
variable.  As  will  be  hereafter  more  particularly  stated,  the 
origin  of  the  rule  is  referred  to  the  civil  law.  But  that  law 
adopted  the  same  rule  in  regard  to  both  real  and  personal 
property ;  (c)  giving  the  vendor  of  each  a  lien  upon  the  thing 

(c)  See  Warren  v.  Fenn,  28  Barb.  334.  Contrary  to  the  rule  of  the 
civil  law,  as  respects  personal  property,  no  lien  exists  by  implication  of  law, 
and  in  no  other  mode  can  a  valid  lien  be  created  in  favor  of  the  seller, 
when  the  legal  title  and  possession  have  been  parted  with,  than  by  express 
contract,  which,  at  least,  as  against  creditors  and  subsequent  purchasers 
without  notice,  must  (in  Tennessee)  be  in  writing,  and  duly  proved  and 
registered.     Woods  v.  Burrough,  2  Head,  (Tenn.)  202. 

It  has  been  held  that  a  vendor  of  grass,  (which  may  be  regarded  as  par- 


CH.  XXIir.]     EQUITABLE   MORTGAGES.  —  VENDOR'S   LIEN.  G'lS 

sold,  until  payment  of  the  price  ;  or,  to  speak  more  accurate- 
ly, making  payment  of  the  price  a  condition  precedent  to  any 
title  whatever  in  the  vendee,  (d)  There  would  seem  to  he 
no  good  reason  for  abandoning  this  principle  in  regard  to 
personal  estate,  which  has  unquestionably  been  done  by  the 
common  law,  except  in  allowing  the  vendor  a  lien  while  he 
holds  possession ;  and  adhering  to  it,  with  reference  to  real 
estate,  alike  where  the  vendor  or  the  vendee  is  in  possession, 
and  notwithstanding  the  latter  may  exhibit  in  his  own 
hands  and  upon  the  public  records  a  perfect  documentary 
title. 

5.  It  may  be  mentioned,  as  another  illustration  of  the  un- 
certainty attending  this  doctrine,  that  the  cases  constantly 
speak  of  it,  as  alike  applicable,  whether  the  vendor  has  ac- 
tually conveyed,  ,or  merely  contracted  to  convey,  the  legal 
title  ;  (e)  of  course  involving  the  conclusion,  that  the  nature 

taking  of  the  nature  of  realty,)  sold  on  credit,  with  a  license  to  cut  it,  but  no 
reservation  of  a  lien,  cannot  claim  such  lien  for  the  payment  of  the  pur- 
chase-money.    Cutler  V.  Pope,  1  Shepl.  377. 

A.  hired  a  piece  of  land  from  B.,  for  which  he  was  to  pay  a  certain  price 
per  acre,  and  the  stalks  after  the  corn  was  harvested.  Held,  B.  had  no  lien 
upon  the  corn  for  the  price.     Loomis  ;;.  Lincoln,  24  Vt.  153. 

But  it  is  also  held,  that,  where  personal  property  is  sold,  under  an  agree- 
ment that  it  shall  be  mortgaged  for  the  price,  the  purchase-money  will  be  a 
lien  on  the  property,  though  no  mortgage  is  executed.  Alexander  v.  Ileriot, 
1  Bailey,  Ch.  223. 

Where  one  sells  standing  wood,  with  authority  to  cut  it  within  a  limited 
time,  he  has  no  lien  upon  the  wood  in  case  of  the  purchaser's  insolvency 
after  the  cutting  and  before  removal  of  the  wood.     Douglas  v.  Shumway, 

13  Gray,  498. 

{d)  "  Quod  vendidi  non  aliter  fit  accipientis,  quain  si  aut  prctium  nobis 
solutum  sit,"  &c.     Dig.  lib.  18,  tit.  1. 

(e)  See  Mims  v.  Macon,  &c.  3  Kelly,  341  ;  Walker  v.  Sedgwick,  8  Cal.  398  : 
Gilkeson  V.  Snyder,  8  W.  &  S.  200.  And  an  actual  conveyance,  in  fulfilment 
of  a  previous  bond  to  convey,  does  not  discharge  the  lien.     Owen  v.  Moore, 

14  Ala.  640.     See  Pintard  v.  Goodloe,  1  Hemp.  502  ;  Amory  i-.  Redly,  9 

Ind.  490. 

Late  cases  seem  to  appreciate  the  absurdity  of  claiming  a  lien  upon  ones 
own  legal  estate,  and  the  manifest  distinction  between  the  titles  of  the  re- 


664  THE    LAW    OF   MORTGAGES.  [CH.  XXIII. 

of  his  title  is  the  same  in  both  instances.  And  yet  it  is  diffi- 
cult to  understand,  how  a  party  can  have  a  lien  upon  prop- 

spective  parties,  as  they  exist  after  a  mere  contract  to  convej',  and  after 
an  actual  conveyance.  In  Virginia,  the  vendor's  lien  has  been  abolished. by 
statute  ;  but  the  right  of  a  vendor  who  retains  the  legal  title  as  security  is 
held  to  be  of  an  entirely  different  nature,  and  the  vendee's  purchasers  take 
only  the  vendee's  equitable  right  to  have  a  conveyance  upon  payment  or 
satisfaction  of  the  price.  And  where  the  conveyance  was  not  to  be  made 
until  the  price  was  paid,  the  vendee  giving  his  bond  therefor ;  and  after- 
wards he  gave  his  bond,  with  the  vendor  as  surety,  to  one  of  the  vendor's 
creditors,  and  the  former  bond  was  thereupon  cancelled ;  and,  the  vendee 
failing,  the  vendor  paid  the  bond  to  the  creditor  :  held,  by  this  mere  shift- 
ing of  securities  the  price  was  not  satisfied,  and  the  vendor  should  hold 
the  land  until  payment  as  against  the  vendee's  grantees  and  creditors. 
Yancy  v.  Mauck,  15  Gratt.  300.  See  Servis  v.  Beatty,  32  Miss.  52  ;  Walk- 
er V.  Sedgwick,  8  Cal.  398.  It  is  held,  that  after  a  contract  the  vendor  holds 
the  legal  title  in  trust ;  while  after  a  conveyance  his  interest  is  strictly  a  lien- 
Neil  V.  Kinney,  10  Ohio  St.  67.  And  in  Pennsylvania  it  is  distinctly  held, 
that  "  before  conveyance,  a  vendor  has  a  lien  by  virtue  of  the  title ;  after  it, 
he  has  no  lien  except  it  be  by  judgment  or  mortgage."  Per  Thompson,  J., 
Stephens's,  &c.,  38  Penn.  13.  See  Springer  v.  Walters,  34  Ibid.  328  ;  Neas's, 
&c.,  31  Ibid.  293. 

The  question  of  lien  may  arise  in  case  of  an  invalid  deed.  Thus  where, 
through  fraud  between  a  vendee  and  the  administrator  of  the  vendor,  who 
died  before  giving  a  deed,  a  deed  is  made  without  payment ;  such  deed  is 
not  void,  but  voidable,  and  subject  to  a  lien  for  the  price.  Servis  v.  Beatty, 
32  Miss.  52. 

Where  one  bought  land,  and  on  delivery  of  the  deed  gave  a  judgment  for 
the  purchase-money  ;  it  was  held,  that  the  lien  for  purchase-money  was  prior 
to  that  of  judgments  entered  against  him  while  he  held  the  land  under  an 
agreement  to  convey.     Cake's  appeal,  23  Penn    186. 

An  interesting  and  important  case,  illustrative  of  the  general  subject  of 
equitable  claims  and  allowances  in  case  of  mortgage,  without  reference  to 
the  strict  legal  title  of  the  respective  parties,  recently  arose  in  Connecticut. 
The  facts  were  briefly  these  :  A.  and  B.  and  the  defendants  (a  company), 
entered  into  a  contract,  that  A.  and  B.  should  manufacture  rifles  for  the 
defendants,  in  a  factory  to  be  erected  by  A.  and  B.  upon  land  conveyed  to 
the  company.  After  the  erection  of  the  factory,  A.  and  B.  made  a  mort- 
gage of  it,  which  mortgage  was  afterwards  assigned  to  the  plaintiff,  on  behalf 
of  the  British  government,  who  brings  this  bill  in  equity  to  redeem.  The  orig- 
inal contract  provided,  that  the  defendants  should  make  advances  to  A.  and 
B.  for  the  manufacturing  business,  which  were  accordingly  made  to  a  large 


CH.  XXIII.]      EQUITABLE   MORTGAGES.  —  VENDOR'S   LIEN.  G(35 

erty,  of  which  he  at  the  same  time  has  the  absolute  legal 
ownership  ;  or  how  the  same  term  can  be  accurately  cm- 
ployed  to  denote  such  ownership,  subject  to  a  mere  execu- 
tory agreement  for  conveyance,  and  the  very  shadowy  inter- 
est, "  neither  property  nor  a  right  of  action,  neither  jus  in  re 
nox  jus  ad  rem;'  which  remains  in  the  vendor  after  ^n  actual 
ti-ansfer  to  the  vendee.  In  the  former  case,  the  lien  consists 
in  the  vendor's  right  to  withhold  a  deed  until  the  price  be 
paid  ;  in  the  latter,  it  authorizes  the  same  or  similar  proceed- 
ings against  the  land,  treated  as  the  vendee's  property,  as  in 
case  of  an  express  mortgage;  and  these  two  rights  have 
little  else  in  common  but  the  name  which  is  alike  applied 
to  them. 

6.  The  same  want  of  certainty  prevails,  in  relation  to  the 
parties  by  and  against  whom  the  lien  may  be  enforced,  and 
to  the  acts  or  agreements  by  which  it  may  be  waived  or  dis- 
charged. And,  upon  a  view  of  the  whole  subject,  it  may  be 
safely  said,  that  the  entire  disuse  or  abrogation  of  such  lien 
in  the  United  States  would  greatly  contribute  to  the  security 
of  titles  to  real  property,  and  put  an  end  to  many  compli- 
cated and  embarrassing  controversies,  by  substituting  clear, 
written  words  of  conveyance,  for  presumed  intention  and 
vague  and  conflicting  equities. 

7.  Notwithstanding  the  obvious  objections  to  this  rule  of 
law,  which  have  been  above  stated,  it  is  still  undoubtedly 
well  settled  by  judicial  decisions.     Thus  it  is  said  by  the 


amount,  and  upon  the  failure  of  A.  and  B.  they  were  largely  indebted  to  the 
defendants.  They  also  failed  to  fulfil  their  contract  with  the  defendants. 
It  was  held,  that  the  defendants  should  hold  the  property  for  all  advances 
made  conformably  with  the  contract,  even  after  notice  of  the  niortijage.  It 
further  appeared,  that  by  the  contract  the  defendants  were  authorizeii  to  take 
the  property  at  an  appraisal,  which,  pending  this  suit,  they  decided  to  do  ; 
and,  by  a  supplemental  bill,  the  petitioner  claimed  the  balance  of  the  value, 
after  deducting  the  defendants'  claim.  The  defendants,  on  the  other  hand, 
claimed  to  oifset  a  demand  against  the  British  government,  relating  to  cer- 
tain breaches  of  contract- for  the  manufacture  of  rifles;  and  this  set-off  was 
allowed.  Rowan  v.  Sharps',  &c.,  29  Conn.  282. 
56* 


666  THE    LAW    OF    MORTGAGES.  [CU.  XXIII. 

Court  in  North  Carolina :  ^  "  That  this  is  the  doctrine  of  the 
English  Court  of  Chancery,  there  can  be  no  doubt.  It  is 
established  by  many  authorities,  and  running  through  many 
years  of  the  judicial  history  of  that  country."  And  in  an- 
other case,  in  Georgia,  with  more  particular  reference  to  the 
objection  against  the  doctrine  arising  from  tlie  statute  of 
frauds,  {/)  it  is  said:  —  "It  is  not,  perhaps,  so  strong  a 
case  as  that  of  a  mortgage  implied  by  a  deposit  of  the 
title-deeds  of  real  estate,  which  seems  directly  against  the 
policy  of  the  statute,  but  which  nevertheless  has  been  un- 
hesitatingly  sustained."  ^  {g)     So  in  Vermont,  {h)   the  only 

1  Per  Nash,  J.,  Womble  v.  Battle,  3  Ired.  Eq.  183. 
■^  Mims  V.  Macon,  &c.  3  Kelly,  341. 


(/)  Such  lien  is  said  to  fall  under  the  head  of  constructive  trusts,  to  which 
the  statute  of  frauds  does  not  apply.  It  is  said  to  be  neither  jus  in  re,  nor 
jus  ad  rem,  neither  property  nor  a  right  of  action,  but  a  charge.  1  Hill,  on 
R.  P.  475;  Pintard  v.  Goodloe,  1  Hemp.  502;  Houston  v.  Stanton,  11  Ala. 
4r>;  Warren  v.  Fenn,  28  Barb.  334;  Wood  v.  Lester,  29  Barb.  152; 
Skaggs  V.  Nelson,  25  Miss.  18.*  But  it  cannot  be  created,  it  is  said,  by 
parol  agreement.  Ibid.  So  if,  in  an  action  on  a  note  alleged  to  have  been 
given  for  the  price  of  land,  the  plaintifi"  prays  for  an  enforcement  of  his 
lien,  the  sale  cannot  be  proved  by  parol  evidence.  Farmer  v.  Simpson,  6 
Tex.  303. 

(^)  We  have  already  adverted  (supra,  §  3,)  to  the  inconsistency  of  the 
American  courts,  in  recognizing  the  implied  lien  of  a  vendor,  and  at  the 
same  time  rejecting  the  equally  well-settled  English  doctrine  of  a  mortgage 
by  deposit  of  deeds. 

(/()  By  a  late  statute  (1851,  42  Gen.  Sts.  452,)  the  lien  is  abolished. 

*  A.  held  the  bond  of  B.  for  the  conveyance  of  certain  land  when  the  purchase- 
money  should  be  paid.  On  payment  of  the  purchase-money,  A.  took  no  deed.  Sub- 
sequently, he  sold  the  land  to  C.  on  a  credit,  and  requested  B.  to  make  the  deed  to  C, 
which  was  done,  the  deed  acknowledging  the  receipt  of  the  purchase-money.  C.  then 
made  a  mortgage  to  D.,  to  secure  a  preexisting  debt,  he  having  no  actual  notice  that 
the  purchase -money  had  not  been  paid.  When  the  mortgage  was  executed,  B.'s 
deed  was  exhibited  to  him  to  show  the  title.  A.  remained  in  possession  of  the  land 
after  it  had  been  conveyed  to  C,  though  without  any  contract  allowing  him  to  do  so. 
Held,  that  A.'s  possession  and  title,  after  the  conveyance  to  C,  were  those  of  a  tenant 
at  sufferance.  Also,  that  A.'s  lien  for  the  purchase-money,  if  he  had  any,  constituted 
no  title,  legal  or  equitable,  and  that  his  occupancy  was  in  no  way  connected  with 
that  lien.     Work  v.  Brayton,  5  Ind.  (Porter,)  396. 


CH.  XXIII.]      EQUITABLE   MORTGAGES.  —  VENDOR'S    LIEN.  (]C7 

State  in  New  England  where  the  rule  has  been  expressly 
sanctioned,  the  Court  remark:— "It  is  a  highly  equitable 
doctrine,  and  eminently  consistent  with  the  most  perfect  no- 
tions of  moral  justice.  It  has  existed  in  the  English  e(iuity 
courts  for  centuries.  It  has  been  adopted  in  most  of  the 
American  States,  whose  equity  systems  may  be  regarded  as 
at  all  settled,  and  in  the  national  courts."  ^  To  the  same 
effect  Judge  Story  says  :  2  _  «  It  has  often  been  objected, 
that  the  creation  of  such  a  trust  by  courts  of  equity  is  in 
contravention  of  the  policy  of  the  statute  of  frauds.  But 
whatever  may  be  the  original  force  of  such  an  objection, 
the  doctrine  is  now  too  firmly  established  to  be  shaken  by 
any  mere  theoretical  doubts.  Courts  of  equity  have  pro- 
ceeded upon  thq^ground,  that  the  trust,  (i)  being  raised  by 
implication,  is  not  within  the  purview  of  that  statute,  but  is 
excepted  from  it.  It  is  not,  perhaps,  so  strong  a  case  as  that 
of  a  mortgage  implied  by  a  deposit  of  the  title-deeds  of  real 
estate,  which  seems  directly  against  the  policy  of  the  statute, 
but  which  nevertheless  has  been  unhesitatingly  sustained." 
The  same  author  further  remarks  r^  —  "The  true  origin  of 
the  doctrine  may  with  high  probability  be  ascribed  to  the 
Roman  law,  from  which  it  was  imported  into  the  equity 
jurisprudence  of  England,  {j)  By  the  Roman  law,  the  ven- 
dor of  property  sold  had  a  privilege,  or  right  of  priority  of 
payment,  in  the  nature  of  a  lien  on  the  property,  for  the  price 
for  which  it  was  sold,  not  only  against  the  vendee  and  his 
representatives,  but  against  his  creditors  and  also  against 
subsequent  purchasers  from  him.  For  it  was  a  rule  of  that 
law,  that  although  the  sale  passed  the  title  and  dominion  in 

1  Per  Redfield,  J.,  Manly  v.  Slason,  -  2  Story's  Eq.  §  1218. 

21  Verm.  271.  ^  jbid.  1221. 


(J)   See  Mims  v.  Macon,  &c.  3  Kelly,  3J1. 

(j)  Ace.  Glower  v.  Rawlings,  9  Sin.  &  M.  122;  Atwood  r.  Vincent,  17 
Conn.  583  ;  Warreu  v.  Fenu,  28  Barb.  334.  One  ground  of  tlic  rule  is, 
that  payment  \s  part  of  the  contract.  Ibid.  Jt  is  also  rested  on  the  ground 
oi good  conscience.    Mims  v.  Macon,  &c.  3  Kelly,  342  ;  28  Barb.  334. 


668  THE   LAW   OF   MORTGAGES.  [CH.  XXIII. 

the  thing  sold,  yet  it  also  implied  a  condition  that  the  vendee 
should  not  be  master  of  the  thing  so  sold,  unless  he  had  paid 
the  price,  or  had  otherwise  satisfied  the  vendor  in  ro:<pect 
thereof,  or  a  personal  credit  had  been  given  to  him  without 
satisfaction." 

8.  As  might  be  supposed,  however,  from  the  anomalous 
character  of  this  doctrine,  it  has  been  made  the  subject  of 
some  severe  strictures  in  the  American  courts.  Thus,  in 
Bayley  v.  Greenleaf,^  Marshall,  C.  J.,  remarks  substantially 
as  follows.  Whether  the  lien  of  a  vendor  be  established 
as  a  natural  equity,  or  from  analogy  to  the  principle,  that 
a  bargainor  holds  in  trust  for  the  bargainee  till  the  price  is 
paid  ;  it  is  still  a  secret,  invisible  trust.  The  vendee  ap- 
pears to  hold,  divested  of  any  trust,  and  §ains  credit,  upon 
the  confidence  that  he  is  the  owner  in  equity  as  well  as  at 
law.  A  vendor  ought  to  take  a  mortgage,  for  the  purpose 
of  general  notice  ;  otherwise,  he  is  in  some  degree  accessory 
to  a  fraud.  It  would  seem  inconsistent  with  the  principles 
of  equity  and  with  the  general  spirit  of  our  laws,  that  such  a 
lien  should  be  set  up  in  a  court  of  chancery,  to  the  exclusion 
of  bond  fide  creditors.  In  the  United  States,  the  claims  of 
creditors  stand  on  high  ground.  There  is  not  perhaps  a 
State  in  the  Union,  the  laws  of  which  fail  to  make  all  con- 
veyances not  recorded,  and  all  secret  trusts  void,  as  to  cred- 
itors, as  well  as  subsequent  purchasers  without  notice.  To 
support  the  secret  lien  of  a  vendor  against  a  creditor,  who  is 
a  mortgagee,  would  be  to  counteract  the  spirit  of  these  laws. 
Judge  Marshall  examines  the  conflicting  English  decisions 
upon  the  subject,  and  also  the  remarks  of  Mr.  Sugden,  ap- 
parently contradictory  to  the  opinion  of  the  Court  in  this 
case ;  and  draws  a  distinction  between  a  conveyance  made 
by  the  debtor  himself,  to  secure  one  or  more  creditors,  or 
creditors  generally,  and  an  assignment  under  an  insolvent  or 
bankrupt  law,  which  the  law  does  not  regard  as  made  for 
valuable  consideration,  but  as  merely  substituting  the  as- 

1  7  Wheat.  46.  See  Gill  i'.  M'Attee,  2  Md.  Ch.  255 ;  Ott  v.  King,  8  Gratt. 
224  ;  Wood  v.  Lester,  29  Barb.  152. 


CH.  XXIII.]      EQUITABLE   MORTGAGES.  — vendor's    UEN.  069 

signee  in  place  of  the  debtor.  (/.-)  So,  in  jATaine,  Ihc  Court 
remark  as  follows:—-"  Such  a  doctrine  may  be  unobjection- 
able in  a  country  where  the  lands  have  been  cultivated  for  a 
great  length  of  time,  and  where  the  change  of  property  is 
comparatively  infrequent.  But  in  this  State,  where  so  great 
a  portion  of  them  are  uncultivated,  and  where  titles  are  sub- 
ject to  such  constant  change,  the  doctrine  would  be  so  un- 
suited  to  the  actual  condition  of  things,  as  to  act  unfavor- 
ably, if  not  oppressively  upon  our  citizens.  The  policy  of 
our  law  is  opposed  to  that  of  Great  Britain  in  this,  that  it 
encourages  the  distribution  of  estates  and  property  among 
all  the  people ;  and  any  rule  of  law  suited  to  restrain  it  can- 
not be  received  as  a  part  of  our  law  merely  because  it  has 
been  long  the  established  law  there.  In  this  State,  the  pub- 
lic registry  is  designed  to  exhibit  to  all  persons  the  state  of 
the  title,  while  in  that  country  such  means  of  information 
have  not  existed  except  to  a  limited  extent.  To  admit  such 
a  lien  would  tend  greatly  to  diminish  the  confidence  held  out 
by  the  law,  as  fitting  to  be  reposed  in  such  records."  ^  And 
in  North  Carolina,  in  a  case  overruling  some  prior  decisions, 
which  had  recognized  the  rule  as  part  of  the  law  of  that 
State,  the  Court  remark  :  —  "  Every  rule  adopted  by  the 
Courts,  whereby  the  titles  to  real  property  shall  be  affected, 
should  be  plain  and  perspicuous.  A  system,  then,  complex 
in  its  nature,  and  leading  to  uncertainty  and  confusion, 
ought  not  to  be  adopted  unless  imperiously  demanded, 
either  by  natural  justice  or  necessity."  ^  So,  in  Pennsyl- 
vania, in  the  case  of  Stouffer  v.  Coleman,^  where  a  writing 
was  executed  between  two  parties,  called  an  article  uf  ag-ree- 
ment,  with  a  covenant  for  a  subsequent  conveyance  by  a 
good  and  sufficient  deed,  but  also  conveying  by  words  of 

1  Per  Shepley,  C.  J.,  Philbrook  v.     3  Ired.  Eq.  186 ;  ace.  Cameron  v.  Ma- 
Delano,  29  Maine,  414,  415.  son,  7  Irerl,  Eq.  180. 

2  Per  Kash,  J.,  Womble  v.  Battle,        '^  I  Yeates,  393. 


(/.•)  Ace.  Marine,  &c.  v.  Early,  Cbarl.  R.  M.  279;  Shirley  v.  Sugar,  &c. 
2  Edw.  Ch.  505;  Van  Doren  r.  Todd,  2  Green,  Ch.  397. 


670  THE   LAW   OF   MORTGAGES.  [CH.  XXIII. 

actual  grant;  and  a  bond  was  given  for  the  price  of  the  land  : 
it  was  stated  by  the  Court,  that  these  facts  presented  two 
questions  for  their  consideration  :  first,  whether  the  party  did 
sell  and  convey,  or  only  agree  to  do  it ;  second,  whether  the 
lien  was  not  waived  by  taking  security  for  the  price.  In  the 
later  case  of  Kauffelt  v.  Bower,^  the  same  Court  remarked, 
that  in  the  former  case  the  doctrine  of  equitable  lien  could 
not  apply,  because  the  vendor  still  retained  the  legal  title. 
They  proceed  to  disavow  the  English  doctrine  upon  the  sub- 
ject, as  a  rule  of  law  in  Pennsylvania,  upon  the  ground  that 
it  was  first  adopted  three  years  after  the  charter  to  Penn ; 
that  it  was  impracticable,  for  want  of  full  equity  powers  in 
the  Court,  and  contrary  to  the  general  understanding  and 
practice,  and  to  the  universal  policy  of  the  law  concerning 
the  registration  of  deeds,  the  liens  of  mechanics,  judgment 
creditors,  creditors  of  deceased  persons,  &c.,  and  would  in- 
volve the  greatest  confusion  and  uncertainty  of  titles.  The 
Court  further  remark,  that  the  doctrine  had  been  recognized 
in  only  two  cases  in  that  State:  Stouffer  v.  Coleman,  and 
Irvine  v.  Campbell,  which  was  merely  a  purchase  of  the 
equitable  title,  the  instrument  being  in  form  executory,  and 
containing  a  covenant  for  further  assurance.  {I) 

9.  But,  notwithstanding  these  dissenting  views,  the  lien  of 
a  vendor  for  the  purchase-money  must  undoubtedly  be  con- 
sidered as  a  settled  principle  of  American  law,  so  far  as  this 

1  7  S.  &  R.  64. 

(I)  Agreement  in  writing  for  the  sale  of  land,  a  certain  sum  to  be  paid  on 
the  vendor's  death,  and  certain  duties  to  be  performed  by  the  vendee  dur- 
ing the  vendor's  life.  The  vendor  made  a  deed  of  the  land,  "  subject  to  the 
reserves  mentioned  in  the  article,  which  reserves  are  to  continue  during  the 
grantor's  life."  Held,  the  agreement  and  deed,  construed  together,  created 
no  lien  for  the  purchase-money.     Zentmyer  v.  Mittower,  5  Barr,  403. 

In  the  same  State  (Pennsylvania),  it  is  held,  that  an  agreement  between 
grantor  and  grantee,  executed  and  recorded  the  same  day  with  the  deed, 
that  the  purchase-money  should  be  a  lien  upon  the  land,  does  not  interfere 
with  the  title  of  subsequent  judgment  creditors  of  the  grantee.  McLanahan 
V.  Reeside,  9  Watts,  508. 


CH.  XXIII.]      EQUITABLE   MORTGAGES.  — vendor's   LIEN.  C71 

depends  upon  the  weight  of  authority.  It  appears  to  have 
been  sanctioned  in  the  States  of  New  York,  (m)  New  Jersey, 
Maryland,  Virginia,  (w)  Tennessee,  Texas,  Mississippi,  Geor- 
gia, Alabama,  Missouri,  Michigan,  Illinois,  Indiana,  Ohio, 
Kentucky,  (o)  and  Vermont;  but  rejected  in  Massachusetts^ 
Maine,  Pennsylvania,  {p)  and  North  Carolina,  (r/)  Whether 
it  is  adopted  or  rejected  in  South  Carolina  (r)  and  Delaware, 
seems  somewhat  doubtful.i  (s)     It  is  said  never  to  have  been 

1  2  Sugd.  (Amer.)  324,  n.  ;  Manly  v.  Vansciner,  3  Green,  Ch.  251  •  Carr  v 

Slason,  21  Verm.  271 ;  Weed  v.  Beebe,  Hobbs,  11  Md.  285  ;  Owen  v    Moore" 

lb.  49o ;  Moore  v.  Holcombe,  3  Leigh,  14  Ala.  640 ;  Philbrook  i-.  Delano  29 

597  ;  Conover  v.  Warren,  1  Gilm.  498 ;  Maine,   410  ;  Herbert   v.   Scliofield    1 

Howard  v.  Davis,  6  Tex.  174  ;  Stewart  Stock.    492  ;    English    v    Russell '  1 

V.  Ives,  1  Sni.  &  M.  197  ;  May  v.  Lewis,  Hemp.  35 ;  Minis  v.  Lockett  23  Geo 

22  Ala.  646  ;  Harring.  Ch.  225  ;  Budd  237. 
V.  Bush,  1  Harring.  69;  BrinkerhofFy. 


(m)  In  this  State,  it  is  very  recently  held,  that,  after  a  contract  to  sell,  the 
vendor  has  merely  a  lien  upon  the  land  ;  that  he  becomes  a  trustee,  and  his 
interest  is  personal  estate,  especially  where  the  purchaser  takes  possession. 
Smith  V.  Gage,  Law  Reg.  May,  1863,  p.  438. 

(n)  It  is  now  provided  by  statute  (Code,  510,)  that  the  hen  shall  not  e.xist, 
unless  expressly  reserved.     See  Yancy  v.  Mauck,  15  Gratt.  300. 

(o)  Under  a  statute  of  this  State,  the  delivery  of  a  deed,  not  reciting 
what  part  of  the  price  is  unpaid,  is  a  waiver  of  the  lien.  Cottman  v.  Mar- 
tin, 1  Met.  563. 

(p)  See  Hepburn  v.  Snyder,  3  Barr,  72. 

(5)  The  following  is  a  summary  view  of  the  course  of  decisions  in  this 
State:  —  That  it  is  doubtful  whether  a  vendor  has  a  lien,  as  against  volun- 
teers and  purchasers  with  notice.  Johnson  v.  Cawthorn,  1  Dev.  &  Bat.  Ch. 
32.  But  such  lien  certainly  does  not  exist  after  a  sale  on  execution,  or  a 
sale  under  a  decree  of  Court,  under  the  act  of  1789,  for  debts  of  the  vendee. 
Ibid.  Harper  v.  Williams,  1  Dev.  &  B.  Ch.  379.  Nor  as  against  a  bonajide 
purchaser  fi'om  the  vendee,  without  notice,  if  it  exists  in  any  case.  Gahee 
V.  Sneed,  1  Dev.  &  Bat.  Ch.  333.  That,  where  land  was  sold,  to  be  con- 
veyed upon  payment  of  the  price,  and,  after  the  death  of  the  vendor,  the 
purchaser  filed  a  bill  against  his  heirs  for  a  conveyance,  which  being  taken 
pro  confesso,  the  Court  decreed  a  conveyance,  without  noticing  the  non- 
payment of  the  purchase-money  ;  such  decree  did  nut  destroy  the  vendor's 
lien  for  the  price.  Winborn  v.  Gorrell,  3  Ired.  Ch.  117.  And,  finally,  that 
the  vendor  of  land  has  not  an  equitable  lien  thereon  for  the  price.  Womblc 
V.  Battle,  3  Ired.  Ch.  182;  Henderson  v.  Burton,  lb.  259. 

(r)   See  Wragg  v.  Comptroller,  &c.,  2  Desaus.  509. 

(s)  In  Iowa,  by  a  recent  act,  the  vendor  of  real  estate,  when  part  or  all 


672  THE   LAW    OF   MOETGAGES.  [ciI.  XXIII. 

adopted  in  its  extent  in  Connecticut,  and  to  exist  only  where 
the  vendor's  object  is  money,  and  he  has  no  other  secur- 
ity.^(^)  In  a  later  case,  in  the  same  State,^  Church,  J.,  says, 
"  in  this  State,  we  have  not  yet  had  occasion  to  resort  to 
it."  (u) 

1  Meigs  V.  Dimock,  6  Conn.  464.  See  Watson  v.  Wells,  5,  468;  Dean  v. 

2  Atwood  V.  Vincent,  17  Conn.  583.     Dean,  6,  285. 


of  the  purchase-money  remains  unpaid  after  the  day  fixed  for  payment, 
whether  time  is  or  is  not  the  essence  of  the  contract,  may  file  his  petition, 
asking  the  Court  to  require  the  purchaser  to  perform  his  contract,  or  to  fore- 
close and  sell  his  interest  in  the  property.  The  vendee  in  such  case  shall 
be  treated  as  a  mortgagor.     Rev.  Stat.  (Iowa,)  1860,  p.  651. 

(t)  The  plaintiff  sold  and  conveyed  land  to  Watson,  taking  notes  of  hand 
and  a  mortgage  for  the  price.  One  of  the  witnesses  to  the  mortgage  acci- 
dentally omitted  to  sign  his  name,  but  it  was  duly  recorded.  The  defendants, 
being  partners  and  creditors  of  Watson,  afterwards  took  from  him  a  deed  of 
the  land,  one  of  them  having  actual  notice  of  the  facts  of  the  case.  The 
plaintiff  brings  a  bill  in  equity,  setting  forth  this  defect  in  the  mortgage,  and 
praying  for  confirmation  of  his  title.  It  was  held,  in  part  upon  the  ground 
of  a  vendor's  equitable  lien,  that  the  plaintiff  was  entitled  to  a  decree.  . 
Watson  V.  Wells,  5  Conn.  468. 

(u)  It  is  unnecessary,  and  would  be  useless,  to  cite  all  the  numerous 
cases,  which  recognize  or  establish  the  doctrine  in  question.  In  Fish  v. 
Howland,  (1  Paige,  24-30,)  Chancellor  Walworth  gives  the  following  valu- 
able abstract  of  the  most  important  among  them  :  — 

In  Chapman  v.  Tanner,  (I  Yern.  267,)  the  earliest  case,  which  occurred 
in  1684,  Lord  Guilford  held,  that  where  the  purchaser  had  become  bank- 
rupt, the  vendor  had  a  lien  for  the  price  of  the  land,  upon  a  principle  of 
natural  equity,  and  did  not  stand  on  the  footing  of  a  general  creditor.*  In 
Bond  I!.  Kent,  (2  Ibid.  281,)  a  mortgage  was  given  for  part  of  the  price,  and 
a  note  for  the  rest.  Held,  there  was  no  lien  for  the  amount  of  the  note.  In 
Coppin  V.  Coppin,  (2  P.  Wms.  291,)  Lord  King  held  there  was  a  lien, 
though  a  receipt  for  the  price  was  indorsed  upon  the  deed.  In  this  case, 
the  question  of  lien  was  a  subordinate  and  incidental  one.  In  PoUexfen  v. 
Moore,  (3  Atk.  272,)  the  conveyances  being  retained,  Lord  Hardwicke 
held  the  land  chargeable  with  a  lien  in  the  hands  of  the  heir.  In  Burgess 
V.  Wheat,  (1  Ed.  211,)  the  general  principle  is  sanctioned.     In  Tardiffe  v. 

*  In  this  case,  however,  it  is  said,  (Fawell  v.  Heelis,  Amb.  726;  Tardiffe  v.  Schru- 
gan,  1  Bro.  424,  n.  b,)  that  there  was  a  special  agreement  for  the  vendor's  retaining 
the  title-deeds. 


CH.  XXlII.j       EQUITABLE   MORTGAGES. VENDOR'S    LIEN.  (573 

10.   With  regard  to  the  general  nature  of  the  lien  in  ques- 
tion, as  has  been  already  remarked,  it  does  not  depend  on 


Schrugan,  (cited  1  Bro.  423,)  a  conveyance  was  made  to  two  dau-hters  of 
the  grantor,  in  consideration  of  an  annuity,  for  which  they  gave  Iiiin  their 
joint  bond.  One  of  them  having  married  and  died,,  her  husband,  wlio  liad 
a  life-estate  in  a  moiety  of  the  land,  refused  to  pay  any  part  of  the  annuity. 
The  other  sister  and  her  husband  then  filed  a  bill  in  equity  against  tiiem. 
Held,  by  Lord  Camden,  that  a  moiety  of  the  annuity  was  a  lien  ujion  the 
land  in  the  defendant's  hands ;  and  decreed,  that  he  pay  a  moiety  of  the 
arrears,  and  keep  down  a  moiety  of  the  future  payments.  In  Fawell  i;. 
Heelis,*  (Amb.  724,)  Lord  Bathurst  held,  that  the  lien  was  discharged,  by 
taking  the  purchaser's  bond,  payable  at  a  future  time.  In  Blackburn  v. 
Gregson,  (1  Bro.  420  ;  1  Cox,  90,)  the  same  point  was  raised,  but  not  de- 
cided. In  Austen  v.  Halsey,  (6  Ves.  4  75,)  which  was  a  claim  of  lien  by  a 
legatee,  Lord  Eldon  ruled  that  the  vendor  has  such  lien,  unless  the  contract 
clearly  shows  a  contrary  intention.  In  Nairn  v.  Prowse,  (Ibid.  752,)  Sir 
Wilham  Grant  recognized  the  general  rule,  but  remarked,  that  if  the  ven- 
dor does  not  trust  to  the  lien,  but  carves  out  a  security  for  himself,  it  is 
doubtful  whether  the  lien  is  or  is  not  waived.  In  Elliot  v.  Edwards,  (3  Bos. 
&  P.  181,)  the  holder  of  a  lease  assigned  it,  with  a  proviso,  that  the  assignee 
should  not  transfer,  &c.,  till  payment  of  the  price,  and  took  security  from  a 
third  person.  Held,  the  vendor  still  had  a  lien  for  the  price.  In  Hu;4hes  v. 
Kearney,  (1  Sch.  &  Lef.  132,)  the  purchaser  gave  a  note  for  the  price, 
which  was  delivered  to  a  third  person  as  trustee,  till  the  incumbrances  could 
be  ascertained  and  paid  off  therefrom,  the  balance  to  be  paid  to  the  vendor. 
Held,  the  amount  of  the  note  was  a  lien,  as  against  an  heir  of  the  purchaser. 
In  Mackreth  v.  Symmons,t  (15  Ves.  329,)  a  lien  was  held  to  exist,  though 
a  bond  had  been  given  for  the  price  ;  and  Lord  Eldon  suggested,  that  taking 
a  mortgage  upon  another  estate,  as  security,  might  not  be  a  waiver.  In 
Grant  v.  Mills,  (2  Ves.  &  B.  306,)  the  purchaser  had  drawn  bills  upon  him- 
self and  his  partner,  which  were  accepted,  payable  on  time,  and  delivered 
them  to  the  vendor.  Held,  such  bills  were  to  be  regarded  as  a  mode  of 
payment,  not  as  security,  and  the  lien  still  continued.  In  Ex  parte  Peake, 
(1  Mad.  346,)  it  was  held  that  a  bill,  and  in  Ex  parte  Loaring,  (2  Itose, 
Bankr.  79.)  that  a  negotiable  note,  on  time,  which  was  discounted  and  after- 
wards dishonored,  was  no  waiver.  So  in  Saunders  v.  Leslie,  (2  Ball  &  B. 
514,)  in  regard  to  a  note  or  bond,  payable  on  time.     But  in  Winter  r.  Lord 

*  This  case  is  said  to  liave  been  often  overruled. 

t  This  case  is  made  the  basis  of  very  valuable  English  and  American  notes  upon 
the  general  subject  of  a  vendor's  lien  for  the  purchase-money,  in  1  ^Vliite's  Leading 
Cases  in  Equity,  336. 

VOL.  I.  57 


674  THE   LAW    OF   MORTGAGES.  [CH.  XXIII. 

possession,  and  exists  alike  in  the  cases  of  an  actual  sale  and 
a  mere  executory  contract.  So  in  case  of  an  exchange  of 
lands.^  (y)  Nor  does  it  depend  on  any  express  assent  or 
agreement  of  parties,  though  sometimes  said  to  rest  upon 
this  foundation.  It  is  implied  from  a  presumed  intention 
of  the  parties,^  and  incident  to  the  contract.^  And  in  some 
cases  is  held  valid,  though  the  contract-  itself  be  in  other 
respects  void.  As  in  case  of  infancy,  {w)  The  lien  is  pre- 
sumed to  exist  primd  facie,  but  may  be  negatived  by  special 
circumstances,  [x)     Thus  it  is  said  not  to  exist,  where  the 

^  Burns  v.  Taylor,  23  Ala.  255.  ^  BrinkerhofF  v.  Vausciven,  3  Green, 

2  Servis  v.  Beatty,  32  Miss.  52.  Cli.  251. 


Anson,  (1  Sim.  &  St.  434,)  where  the  purchaser  gave  his  bond,  payable  at 
the  death  of  the  vendor,  with  interest  annually,  and  a  receipt  for  the  money 
■was  indorsed  upon  the  deed  ;  held,  there  was  no  lien,-  the  vendor  evidently 
intending  to  part  with  the  estate  immediately,  and  to  wait  for  payment  of 
the  price. 

(y)  Upon  an  exchange  of  farms  between  A.  and  B.,  A.  covenanted  to 
discharge  a  mortgage  upon  the  farm  given  in  exchange  by  him,  and  after- 
wards loaned  the  money  of  a  third  person,  to  discharge  the  mortgage,  under 
an  agreement  afterwards  perlbrmed,  that  the  mortgage  should  be  assigned 
to  the  lender  as  security.  Held,  the  assignee  was  entitled  to  a  preference, 
for  the  amount  advanced  by  him,  over  a  person  to  whom  B.  had  subsequent- 
ly mortgaged  the  land  to  secure  a  preexisting  debt.  White  v.  Knapp,  8 
Paige,  1 73. 

(w)  Thus,  where  an  infant  purchaser  paid  part  of  the  price ;  in  a  suit  for 
the  balance,  set  up  his  minority  and  prevailed ;  and,  after  coming  of  age, 
conveyed  to  one  having  notice  of  all  the  facts :  —  held,  the  vendor  retained 
a  lien  for  the  price,  and  might  enforce  it  in  equity  without  restoring  or  offer- 
ing to  restore  the  sum  paid  him ;  although,  after  the  conveyance  to  the 
infant,  but  before  the  latter  had  avoided  it,  the  plaintiff  had  quitclaimed  to 
another  person.     Weed  v.  Beebe,  21  Verm.  495. 

But,  on  the  other  hand,  it  is  held,  that  such  lien  is  not  a  mortgage,  but 
has  merely  the  incidents  of  a  mortgage  :  it  consists  solely  in  debt,  and  must 
be  subject  to  all  the  incidents  of  the  debt,  and  cannot  be  enforced  if  the 
debt  cannot  be.  When  the  note  is  barred  by  the  statute  of  limitations,  the 
remedy  to  enforce  the  equitable  lien  is  also  barred.  Trotter  v.  Erwin,  27 
Miss.  772. 

(x)  On  the  other  hand,  it  is  said,  there  must  be  clear  proof  oi  the  inten- 


CH.  XXIII.]     EQUITABLE  MORTGAGES. —  VENDOR'S    LIEN.  iMT) 

object  of  the  sale  was  not  money,  but  some  collateral  licnotit.' 
A  special  contract  for  payment  of  the  purchase-money,  in  order 
to  defeat  the  lien,  must  be  explicit,  even  if  it  ever  of  itself  has 
this  effect ;  and,  though  the  contract  is  stated  in  the  convey- 
ance, evidence  may  be  given  of  the  true  bargain,  and  a  sub- 
sequent purchaser  is  bound  to  inquire  whether  it  was  intended 
to  waive  the  lien.^  But  there  was  held  to  be  no  lien,  where 
a  part  of  the  consideration  consisted  in  a  conveyance  by  the 
vendee  to  the  vendor  of  other  land,  with  a  covenant  against 
incumbrances,  which  covenant  was  broken  by  an  existing  in- 
cumbrance. In  such  case,  at  any  rate,  the  vendor  cannot 
claim  a  lien  till  he  has  removed  such  incumbrance.^ 

11.  Judge  Story  says:  —  "The  lien  of  a  vendor  for  the 
purchase-money  is  not  of  so  high  and  stringent  a  nature  as 
that  of  a  judgment  creditor,  for  the  latter  binds  the  land 
according  to  the  course  of  the  common  law,  whereas  the 
former  is  the  mere  creature  of  a  court  of  equity,  which  it 
moulds  and  fashions  according  to  its  own  purposes.  It  is, 
in  short,  a  right  which  has  no  existence,  until  it  is  established 
by  the  decree  of  a  Court  in  the  particular  case ;  and  is  then 
made  subservient  to  all  the  other  equities  between  the  par- 
ties, and  enforced  in  its  own  peculiar  manner,  and  upon  its 
own  peculiar  principles.  It  is  not,  therefore,  an  equitable 
estate  in  the  land  itself,  although  that  appellation  is  loosely 
applied  to  it."  "^  It  gives  no  claim  to  the  profits  of  the  land  ;  ^ 
nor  to  the  back-rents,  when  enforced.^     But  the  vendor  may 

1  1  Hill.  R.  P.  474 ;  Sears  v.  Smith,        ^  jjare   v.   Van  Deusen,   82   Barb. 

2Micli.243;  Tiermany.Beam,2Ham.  92. 

383 ;  Van  Doren  v.  Todd,  2  Green,  *  Oilman  v.  Brown,  1  Mas.  191,  221. 
CIj   397  5  Little  v.  Brown,  2  Leigh,  353.  But 

2'  Frail  v.  Ellis,  7  Eng.  Law  &  Eq.  see  Irwin  v.  Davidson,  Ired.  Ch.  311. 
457  6  Medley  v.  Davis,  5  Humph.  387. 


tion  of  the  parties,  and  of  the  sum  due.     Williams  v.  Stratton,  10  Sm.  &  M- 
418. 

In  an  action  on  a  note,  alleged  to  have  been  given  for  land  sold,  with  a 
prayer  that  a  lien  on  the  land  might  be  enforced ;  it  was  held,  that  the  sale 
could  not  be  established  by  parol  testimony.    Farmer  v.  Simpson,  6  Tex.  303. 


6'^ 6  THE   LAW    OF   MORTGAGES.  [CH.  XXHI. 

claim  rents  paid  to  a  receiver,  pending  the  bill.^     And  it  has 
been  held  an  insurable  interest.^ 

12.  This  lien,  like  most  other  equitable  rights  or  claims, 
exists  only  in  a  court  of  equity.  («/)  And  it  is  said  to  be  a 
relief  afforded  only  there  on  the  ordinary  ground  that  the 
claimant  is  remediless  in  a  court  of  law.  If  the  vendor 
can,  by  any  proceeding  at  law,  recover  the  amount  due  him, 
chancery  never  interferes  to  enable  him  to  assert  his  equitable 
lien.  His  remedy  at  law  must  be  first  exhausted,  or  it  must 
be  shown  that  none  exists  there.     When,  therefore,  a  vendor 

1  Medley  v.  Daris,  5  Humph.  387.  ^  Tyler  r.  ^tna,  &c.,  16  Wend.  385. 

(?/)  See  Houston  v.  Stanton,  11  Ala.  412.  At  law,  the  clause  acknowl- 
edging receipt  of  the  purchase-money  is  held  conclusive,  except  in  case  of 
fraud.  Rowntree  v.  Jacob,  2  Taunt.  141.  An  equitable  estate  may  itself  be 
the  subject  of  an  equitable  lien.     Warren  v.  Fenn,  28  Barb.  333. 

In  a  late  case  in  Pennsylvania,  the  precise  respective  interests  of  the  ven- 
dor and  vendee,  in  reference  to  lien,  were  brought  in  question,  in  the  con- 
struction of  a  statute,  which  provides  that  the  Court  may  make  an  order,  in 
case  oP  extent,  for  distribution  among  lien  creditors,  as  upon  a  sheriff's  sale. 
It  was  held,  that  the  unpaid  purchase-money  due  on  articles  of  agreement  is 
not  a  lien,  which  can  properly  be  laid  before  a  sheriff's  inquest,  to  deter- 
mine whether  the  rental  of  the  vendee's  estate,  levied  on,  will  in  seven  years 
be  sufficient,  beyond  all  reprise,  to  satisfy  the  execution.  Springer  v.  Wal- 
ters, 34  Penn.  328. 

Upon  the  general  subject  of  lien,  the  Court  made  the  following  remarks: 
"  When  the  vendee's  interest  alone  is  sold  on  execution,  the  purchase-money 
due  the  vendor  is  not  paid  out  of  the  proceeds  —  because  it  is  not  a  lien  on 
the  equitable  estate,  but  on  the  legal,  by  virtue  of  the  title.  When  the 
vendor  sells  upon  a  judgment  for  purchase-money  then  he  is  paid  according 
to  his  priority  of  lien  on  the  land,  both  the  legal  and  equitable  estates  being 
sold.  The  principle  of  distribution  of  the  proceeds  of  the  equitable  estate  is 
the  same,  whether  in  sales,  or  by  extent  of  the  land,  and  order  of  the  Court. 
In  neither  case,  can  the  vendor's  lien  be  affected,  or  he  be  entitled  to  any 
money  in  the  distribution,  on  account  of  the  legal  title.  The  interest  of  the 
vendee  under  articles,  is  a  distinct  interest  from  the  legal  title  ;  it  can  be 
bound  as  such  and  sold  as  such,  without  interfering  with  the  legal  estate. 
Inasmuch,  therefore,  as  the  vendor's  claim  cannot  come  in  on  the  purchase- 
money,  I  cannot  see  Avhy  it  should  be  the  means  of  sending  to  sale  property, 
the  pt-oceeds  of  which  could  not  be  applied  to  its  extinguishment."  Per 
Thompson,  J.,  Ibid.  329. 


CH.  XXIII.]     EQUITABLE   MORTGAGES.  —  VENDOR'S    LIKN.  t>77 

goes  into  equity,  seeking  to  enforce  such  a  lien,  he  must 
show  that  he  has  no  redress  at  law.i  Hence  it  was  held 
insufficient  to  allege,  without  proving,  a  seizure  on  execution 
of  other  property  ;  and  also  held  necessary  to  show,  that  the 
debtor  had  no  other  property.^  And,  on  the  other  hand,  a 
lien  is  not  necessarily  implied  from  a  decree  or  judgment 
for  the  purchase-money.3  It  is  also  held  that  suits  for  the 
debt  and  the  land  cannot  be  maintained  concurrently.*  80 
it  is  held,  that  a  vendor  can  enforce  his  lien  only  in  case  of 
a  deficiency  of  personal  estate  of  his  debtor ;  and  a  bill  to 
enforce  such  lien,  it  not  appearing  that  the  debt  cannot  be 
made  at  law,  will  be  dismissed,^  more  especially  if  the  ven- 
dee lives  out  of  the  State.^  But,  on  the  other  hand,  it  has 
been  sometimes  held,  that  a  vendor  may  enforce  his  equitable 
lien  without  proceeding  at  law."  Or,  where  the  bond  for  a 
title  has  been  assigned.  In  such  case,  though  he  might  main- 
tain ejectment  for  the  land,  that  remedy  is  said  to  be  not 
complete,  as  a  recovery  would  not  affect  the  contract  of  sale, 
but  leave  it  in  full  force ;  and  he  could  retain  possession, 
only  until  the  rents  and  profits  had  discharged  his  lien,  when 
chancery  would  compel  a  reconveyance  ;  and  a  recovery 
even  might  be  prevented  by  a  bill  to  redeem.^  {z) 

1  Per  Dorsey,  J.,  Pratt  v.  Van  Wyck,        5  Bottorf  v.  Conner,  1  Blackf.  287. 

6  Gill  &  J.,  498;  ace.  Eyier  v.  Crabbs,  ^  Green  v.  Fowler,  11  Gill  &  J.  103. 

2  Md.  137.  7  Richardson  v.  Baker,  5  J.  J.  Marsli. 

2  Ibid.  323. 

3  Slack  V.  McLagan,  15  111.  242.  »  Haley  v.   Bennett,    5   Port.   452. 
*  Walker  v.  Sedgwick,  8  Cal.  398.  And  see  Owen  v.  Moore,  14  Ala.  640. 


(2)  Under  the  Code  of  Indiana,  in  a  suit  on  a  note  and  to  enforce  a  ven- 
dor's lien,  a  prior  judgment  on  the  note  and  a  return  of  no  personal  prop- 
erty need  not  be  alleged.  But  a  judgment  for  a  sale  under  the  lien  in  the 
first  instance  is  bad,  unless  it  appear  of  record  that  the  defendant  has  no 
personal  property  out  of  which  the  note  can  be  satisfied  by  execution.  .ScoU 
V.  Crawford,  12  Ind.  410. 

A  person  directed  his  solicitors  to  loan  certain  money  for  him  on  mortgage, 
after  examining  the  title.  After  such  examination,  the  plaintilF,  one  of  them, 
advanced  part  of  the  money,  and  received  the  mortgage,  but  the  defendant, 
the  other,  refused  to  complete  the  loan  or  advance  the  money  to  iIkJ  mort- 
gagor. The  plaintiff  brings  a  bill  in  equity  to  compel  an  a.ssignment  of  the 
57  * 


678  THE   LAW    OF   MORTGAGES.  [CH.  XXIII. 

13.  The  assignee  of  a  bond,  given  for  the  price  of  part  of 
a  tract  of  land,  failing  to  obtain  payment  from  the  purchaser, 
has  no  lien  on  the  unpaid  purchase-money  in  the  hands  of 
the  grantee  of  the  other  part.^ 

14.  It  has  been  made  a  question,  whether  an  equitable 
lien  upon  land  can  be  maintained  in  favor  of  a  vendor,  who 
has  himself  never  had  a  legal  title,  his  vendee  taking  a  title 
directly  from  the  person  of  whom  the  vendor  purchased.^ 
But,  where  a  vendee  by  parol  sold  in  the  same  way,  and  the 
first  vendor  then  gave  a  deed  to  the  second  vendee  ;  held,  he 
had  a  lien  for  the  price.^  And  a  vendor,  conveying  to  pur- 
chasers from  his  vendee,  and  receiving  payment  from  them, 
and  partial  payments  from  his  vendee,  still  retains  his  lien 
upon  the  remainder  of  the  land,  for  the  balance  of  the  pur- 
chase-money.* (a) 

1  Ragsdale  v.  Hagg,  9  Gratt.  409.  *  Taylor  v.  Alloway,  3  Litt.   216  ; 

-  Bayley  v.  Greenleaf,  7  Wlieat.  50.     Marsh  v.  Turner,  4  Mis.  253. 
^  Briscoe  v.  Bronaugh,  1  Tex.  326. 


mortgage  to  him.  Held,  the  plaintiff  was  not  bound  to  sue  at  law  for  his 
advances;  that  he  alone  had  a  lien  on  the  mortgage,  and  the  defendant, 
holding  the  legal  title  in  trust  for  him,  was  bound  to  assign  the  mortgage  to 
him;  and  that  the  case  was  one  of  equity  jurisdiction.  Mount  v.  Suydam, 
4  Sandf.  Ch.  399. 

A.  sells  land  to  B.,  obtains  judgment  on  the  notes  given  him  for  the  pur- 
chase-money, and  levies  on  the  lands  in  the  possession  of  C.,  a  purchaser 
from  B. ;  and  C.  puts  in  his  claim.  Held,  upon  trial  of  the  claim,  A.  cannot 
set  up  his  lien  as  vendor,  but  must  go  into  equity  to  establish  it,  and  there 
obtain  a  decree  that  the  land  be  sold.     Colquitt  i'.  Thomas,  8  Geo.  258. 

Where  a  note  given  for  the  purchase  of  land  is  put  in  suit,  the  vendor's 
lien  should  properly  be  enforced  in  the  same  action  ;  but  a  neglect  to  em- 
brace both  remedies  in  such  action  is  not  necessarily  a  waiver  of  the  lien, 
either  as  to  the  vendee,  or  as  to  purchasers  from  him  with  notice,  at  any 
rate  so  long  as  the  note  is  not  barred ;  and  a  subsequent  action  to  enforce 
the  lien  may  be  sustained,  after  execution  and  return  of  no  property  in  the 
first  suit.     McAlpin  v.  Burnett,  19  Tex.  497. 

(f/)  A.,  having  title,  executed  a  bond  to  B.,  who,  having  paid  therefor, 
assigned  the  bond  to  C,  who  assigned  to  D.,  with  notice  of  tlie  non-payment 
of  the  purchase-money  due  from  C.  to  B..  and  of  tlie  lien  of  the  latter  on  the 
land.     Held,  B.  had  a  lien.     Ligon  v.  Alexander,  7  J.  J.  Marsh.  2&8. 

It  seems,  in  Indiana,  a  valid  title  to  real  estate  may  pass  by  a  mere  agree- 


en.  XXiri.]      EQUITA15LE    MOllTGAHE?. VKNDOIlS    LTKV.  079 

15.  The  doctrine  of  equitable  lien  does  not  :i|)|)ly  lo  the 
assignment  of  a  mortgage  and  the  debt  secured  l)y  il.  The 
assignor  has  no  such  lien.^  But  the  assignor  of  a  liond  for 
a  title  is  held  to  have  the  same  lien  upon  the  land,  as  a  ven- 
dor who  con-veys  by  deed.^ 

16.  Where  a  grantee,  in  consideration  of  the  conveyance, 
agi-ees  to  pay  debts  of  the  grantor,  and  support  him  and  his 
daughters;  the  grantor  has  no  lien  to  secure  such  support.^^ 
So,  where  A.  conveys  land  to  B.,  who,  in  consideration 
thereof,  covenants  with  A.  to  support  and  maintain  him  and 
his  lunatic  son  during  their  lives,  and  the  life  of  the  survivor ; 
such  covenant  creates  no  lien  in  favor  of  eitlier  A.  or  his  .-dh  ; 
the  eovt'uant  being  substituted  for  the  purchase-money,  or 
a  mode  of  payment  of  the  price  of  the  land.'*     So,  where  a 

1  Tnitt  v.   Vail  Wyck,  G  (ilill  &  J.         »  Brawli'v  v.  Catron,  8  Leitj;li,  522. 
4y8.  -t  McKillip  r.  McKillii),  8  Barl).  oo2. 

-  Wiseman  v.  Reiil,  7  J.  J.  Marsh. 
249. 


ment,  accompanied  by  delivery  of' possession.     But,  in  such  case,  the  vendor 
may  reserve  an  express  lien  for  the  price. 

Agreement  under  seal,  to  sell  certain  land  and  a  steam-engine,  the  price 
to  be  paid  in  three  years;  the  purchaser  to  have  immediate  possession  ot" 
the  land,  ami,  after  erecting  a  mill-house,  to  have  the  engine  also,  wjiich  was 
to  remain  on  the  land  till  payment  of  the  price,  when  a  title  should  he  made. 
The  vendee  took  possession  oC  the  land,  built  the  house,  and  put  the  engine 
in  operation.  In  September,  18'21,  the  vendor  assigned  the  agreemeni,  and 
in  July,  1824,  the  assignee  re-assigned  it  to  another  person.  In  ^March, 
1823,  a  judgment  was  recovered  against  the  vendee,  and  the  lanil  sold  on 
execution.  The  second  assignee  brings  a  bill  in  ecpiity  against  the  e.veeu- 
tlon  purchaser,  claiming  a  lien  upon,  ami  praying  a  sale  of  the  property,  to 
satisfy  tlie  claim  tor  the  purchase-money.  Held,  the  doctrine  of  implied  lien 
was  not  applicable  to  this  case  ;  that  the  agreement  not  to  remove  the  engine 
gave  an  express  lien  upon  it,  and  the  express  covenant,  that  the  vendor  siiould 
retain  his  title  till  payment,  created  a  lien  upon  the  land  ;  that  the  lien  was 
assignable,  and,  after  the  first  assigmncut,  the  vendor  retained  only  a  bare 
legal  title,  held  in  trust  for  the  purposes  of  the  contract ;  and  that  the  de- 
fendant, having  notice,  took  the  estate  subject  to  the  same  trust.  A  sale  was 
decreed,  with  the  proper  injunction  to  the  persons  in  jjossession,  .Sec.  La- 
gow  V.  BadoUet,  1  Blackf.  416. 


680  THE    LAW    OF   MORTGAGES.  [CH.  XXIII. 

father  conveyed  to  his  son,  taking  back  a  bond  for  the  support 
of  himself  and  his  wife  for  life,  and  a  lease  of  part  of  the  land 
for  the  same  term  ;  held,  the  grantor  had  no  lien.^  So  a 
deed  was  made  by  a  grandfather  to  his  grandson,  in  consid- 
eration of  love  and  affection  and  divers  other  good  consider- 
ations, and  with  the  purpose  of  disposing  of  the  grandfather's 
property  after  his  death,  and  securing  a  legacy  to  his  son  ; 
and  that  he  in  the  mean  time  might  retain  control  of  the 
land  so  far  as  to  secure  a  support.  For  this  purpose,  the 
grandfather  took  back  a  life  lease  at  a  nominal  rent,  and 
a  bond  conditioned  (virtually)  that,  whenever  the  grandson 
neglected  to  provide  a  support  for  him,  he  might  resume  pos- 
session or  claim  rent.  Held,  these  facts  showed,  that  the 
vendor  did  not  rely  upon  any  implied  lien,  but  carved  out 
his  own  security  for  his  support  by  a  direct  incumbrance 
upon  the  land ;  and  that  this  express  lien  for  a  part  of  the 
consideration  negatived  the  right  of  any  implied  lien  for  the 
residue.2  So  A.  grants  to  B.  real  and  personal  estate,  in 
consideration  of  money  paid,  and  of  an  annuity  for  the 
life  of  A.  if  she  should  survive  B.  ;  and  in  the  same  deed  B. 
covenants  that  his  estate  shall  pay  the  annuity.  Held,  that 
this  transaction  does  not  create  a  charge  on  the  estate  for 
payment  of  the  annuity,  nor  a  vendor's  lien.^ 

17.  The  doctrine  applies  to  forced  sales,  by  operation  of 
law,  as  well  as  to  those  made  by  the  voluntary  act  of  the 
owner.  It  is  said  by  the  Court  in  Maryland,  "  No  reason 
occurs  to  us  why  it  should  not  apply  equally  to  a  forced 
sale  under  the  law,  as  to  a  voluntary  conveyance  by  the 
party  himself.  Indeed,  the  reason  is  stronger  for  maintain- 
ing it  in  the  former  case  than  in  the  latter.  In  voluntary 
sales,  the  vendor  might  perhaps  be  left  to  suffer  the  conse- 
quences of  his  own  want  of  caution  without  just  ground 
of  complaint.  But  this  cannot  be  affirmed,  where  he  is  de- 
prived of  his  property  against  his  will  by  the  strong  arm  of 
the  law,  under  the  stern  plea  of  State  necessity."      Thus, 

1  Meigs  V.  Dimofk,  0  Conn.  458.  ^  McCandlish    v.   Keen,    13    Gratt. 

^  Fish  V.  Howiand,  1  Paige,  20.  615. 


CH.  XXIII.]     EQUITABLE    MORTGAGES. VENDOIl's    LIEX.  081 

a  railroad  corporation  being  authorized  by  their  charier  to 
take  lands  for  the  use  of  the  road,  and  not  able  to  agree  with 
the  plaintiff,  an  owner  of  land,  upon  the  price  to  be  paid 
him  ;  commissioners  awarded  the  amount,  which  was  len- 
dered  but  refused.  The  plaintiff  afterwards  sued  Ihe  con- 
tractors of  the  road  for  trespass,  but,  failing  in  such  suit, 
received  a  certificate  of  deposit  for  the  amount  awarded  by 
the  commissioners ;  the  company,  however,  at  that  time  be- 
ing utterly  and  notoriously  insolvent,  and  no  deposit  being 
actually  made.  The  road  w^as  afterwards  sold  under  a  de- 
cree in  chancery  to  the  defendants,  the  plaintiff  not  being 
party  to  the  proceedings,  and  his  agent  giving  notice  at  the 
time  and  place  of  sale,  that  the  plaintiff  would  claim  a  lien 
on  the  land  seized  for  the  price  awarded.  Upon  a  bill  to 
enforce  such  lien,  by  a  sale  of  land,  held  the  plaintiff  was 
entitled  to  a  decree.^  But  commissioners  appointed  by  the 
Court  to  sell  land,  who  sell  it,  and  take  a  note  of  the  pur- 
chaser for  a  part  of  the  price,  cannot  file  a  bill  to  have  the 
land  sold  to  pay  such  note.^ 

18.  Where  a  conveyance  w^as  made,  which  was  intended 
as  a  trust,  but  on  the  face  of  it  appeared  to  be  a  purchase, 
and,  the  trust  not  being  in  writing,  the  party  lost  his  estate  : 
held,  he  still  had  a  lien  for  the  purchase-money  stated  in  the 
deed.'^ 

19.  Where  a  husband  completed  a  contract  of  purchase 
entered  into  by  the  wnfe  before  marriage:  held,  his  a^signee 
had  a  lien  for  the  purchase-money,  and  interest,  and  lasting 
improvements,  from  the  time  of  completing  the  contract,  he 
accounting  for  the  rents  and  profits  from  that  time.^ 

20.  The  question  has  often  arisen,  against  what  parties, 
claiming  an  interest  in  the  land,  the  lien  of  the  vendor  for 
the  purchase-money  may  be  enforced.  Such  lien  is  said  to 
be  valid  against  the  purchaser,  his  heirs,  &c.,  and  widow, 
and  all  subsequent  purchasers  from  him  without  considera- 

1  Minis  V.  Maeon,  &c.  3  Kelly,  342.  »  Lenian  ..  ^J'''^'^'>'' Wlfro^T?" 

2  West    i'.    Tlioinburgh,   6   Blackf.         *  J^ecgon  i:  Clarkson,  4  Hare,  J7. 

542. 


G82  THE   LAW    OF   MORTGAGES.  [CH.  XXIII. 

tion  or  with  notice,  devisees,  purchasers  under  a  sale  for 
payment  of  debts  after  the  vendee's  death,^  holders  of  subse- 
quent general  liens,  and,  it  seems,  an  execution  purchaser.^  (b) 
So,  also,  against  a  mechanic's  lien  acquired  before  the  deed, 
although  the  vendee  had  possession  and  had  given  notes  for 
the  price.^  Or  against  a  conveyance  to  secure  a  preexisting 
debt,  though  the  creditor  have  no  notice  of  the  lien  ;  a  bond 
fide  purchaser  being  one,  who,  at  the  time  of  purchase,  ad- 
vances some  new  consideration,  surrenders  some  security,  or 
does  some  other  act,  which,  if  his  purchase  were  set  aside, 
would  leave  him  in  a  worse  than  his  original  position.*  So 
against  an  assignee  for  benefit  of  creditors.^  But  not  against 
creditors  holding  under  a  bond  fide  conveyance,  or  subsequent 
purchasers,  or  mortgagees,  without  notice,  or  a  bond  fide  pur- 
chaser from  a  fraudulent  purchaser,  (c) 

1  White  I'.   Casanave,   1  Har.  &  J.        ^  jjeji  „.  Kinney,  10  Ohio  St.  67. 
106.  *  Hoggatt  V.  Wade,  10  Sra.  &  M.  143 ; 

2  Kilpatrick  i-.  Kilpatrick,  23  Miss.  Chance  v.  McWhorter,  26  Geo.  315. 
124.  °  Warren  v.  Fenn,  28  Barb.  333. 


Qj)  When,  in  founding  a  city,  certain  lots  are  reserved  and  dedicated  by 
the  founder  to  particular  public  purposes,  and  the  donees  fail  or  refuse  to 
accept  the  same,  these  lots  revert  to  the  grantor,  and  his  vendor  may  enforce 
his  lien  for  the  unpaid  purchase-money,  as  the  lien  has  never  been  detached. 
Still  V.  Griffin,  27  Geo.  502. 

(c)  More  especially,  a  vendor  cannot  enforce  his  lien  against  subsequent 
purchasers  without  notice,  for  a  sufficient  consideration,  and  who  purchased 
of  the  vendee  after  he  had  been  in  quiet  possession  for  more  than  twenty 
years.     Ewing  v.  Beauchamp,  6  B.  Mon.  422. 

A.  sold  land  to  B.,  executed  his  bond  for  title,  and  afterwards  died.  The 
Probate  Court,  upon  application  of  B.  before  payment  of  the  purchase- 
money,  directed  the  administrator  to  convey  to  B.  He  did  so,  and  after- 
wards brought  an  action  against  B.  for  the  purchase-money,  recovered 
judgment,  and  levied  upon  the  land,  which  was  bought  by  C,  and  by  him  sold 
to  D.     Held,  the  administrator  had  no  lien.     Boon  v.  Barnes,  23  Miss.  136. 

Though  a  purchaser  with  notice  from  one  without  notice  takes  the  latter's 
rights,  yet  if,  confederating  with  the  original  vendee,  he  has  procured  the 
purchase,  under  a  foreclosure  sale,  to  be  made  by  the  innocent  purchaser, 
intending  to  purchase  from  him  and  to  defeat  the  vendor's  lien,  he  shall  take 
nothing  by  his  fraud.     Chance  u.  McWhorter,  26  Geo.  315. 

Where  a  settler  upon  the  public  lauds  of  the  United  States,  under  a  pre- 


CH.  XXIIl.]     EQUITABLE   MORTGAGES.  —  VENDOR'S   LIEN.  683 

21.  Notice  is  sufficient  to  charge  a  purchaser,  if  received 
at  any  time  before  payment  of  the  price.^     Or  if  it  is  merely 

1  4  Kent,  151-153;  2  Story  461-471;  225;    23  Miss.   136.      Sec  Lincoln  .. 

Hallock  V    Smith    3  Barb.  267  ;  Esk-  Purccll,  2  Head,  143;  Collier  v   llark- 

ridge  r.McCure,2Yerg.84;  Magru-  ness,  26  Geo.  362;    M-Alpin   r.  Bur- 

der..Peter  11  G.&Jo hns.2  8;  Graves  nett,  23  Tex.  649;  Taylor  v.  Hunter. 

V    McCall,   1   Call    414.    Handley   v.-  5  Humph.   56 'J ;    Owen  v.  Moore,   14 

^^°"''  ^  ^."°n^;o^^l'  ^"^'■'^  ^-  ^'^^'  ^^''-  •^^O;  ^I'all  V.  Biscoe.  18  Ark.  142; 

I  ^p\t  ?^;    W  .^^^^"l^*  ""■  ^^^^'  1  Burlingame  v.  Bobbins,  21  Barb.  327  ; 

^^-  t?}-  1^7 1^";^^  y.  Robmson,  14  M'Brayer  v.  Collins,  18  B.  Mon.  833 

Geo.  216  ;  McKmght  v.  Brady,  2  Mis.  Miras  i-.  Lockett,  28  Geo.  237 
110 ;    Patterson  v.  Johnston,  7  Ham. 


emption  right,  sells  his  land,  and  his  grantee  sells  it  again,  subject  to  the 
original  vendor's  claim  for  the  purchase-money,  which  the  second  grantee 
assumes ;  the  original  vendor  has  a  lien  for  such  purchase-money,  which  he 
may  enforce  in  equity  against  the  second  grantee,  even  after  the  latter  has 
taken  out  a  patent  to  the  land  in  his  own  name,  under  a  subsequent  pre- 
emption law.     Thredgill  v.  Pintard,  12  How.  U.  S.  24. 

Bill  to  enforce  a  lien  against  three  persons,  alleging  a  sale  to  two  of  them, 
•who  gave  their  notes  for  the  price,  one  payable  to  the  plaintiff's  wife,  for 
release  of  dower  ;  a  conveyance  made  to  one  In  trust  for  him  and  the  other ; 
an  express  agreement  that  the  notes  should  be  a  lien  ;  and  a  purchase  by 
the  third  defendant  from  the  plaintiff's  grantee,  with  notice.  The  answers 
of  the  two  alleged  vendees  denied  such  trust,  and  such  agreement  for  a  lien, 
and  alleged  a  conveyance  to  the  grantee  alone,  on  condition  that  the  other 
alleged  joint  purchaser  should  sign  the  notes  as  surety.  The  third  defend- 
ant admitted  his  purchase,  and  notice  of  the  non-payment  of  part  of  the 
price ;  but  alleged,  that  he  ascertained  the  notes  were  signed  by  the  second 
joint  purchaser  as  surety,  and  were  not  therefore  a  lien,  and  that  he  had 
paid  all  the.  price.  Held,  there  was  no  sufficient  evidence  of  the  alleged 
trust,  or  of  an  express  lien  ;  and  the  bill  was  dismissed.  Way  v.  Patty,  1 
Smith,  44. 

A  purchaser,  not  having  paid  for  the  land,  conveyed  it,  taking  back  two 
mortgages,  of  equal  date,  for  parts  of  the  consideration;  with  the  intention 
that  one  of  them  should  be  assigned  to  the  original  vendor,  as  security  for 
the  original  purchase-money,  and  have  priority,  according  to  the  agreement 
between  them.  The  mortgages  were  simultaneously  recorded,  but  the  one 
designed  for  the  original  vendor  was  first  assigned  to  him,  and  afterwards 
the  other  was  assigned  to  another  person  bondjide,  and  for  full  value.  Held, 
this  assignee  took  his  mortgage,  subject  to  the  original  vendor's  equity  against 
his  vendee;  that  the  statute  of  registry  had  no  application  to  the  respective 
titles  of  the  two  assignees ;  that  the  first  purchaser  took  the  vendor's  mort- 
gage as  trustee  for  him  ;  that  the  principle,  by  which  a  lien  is  waived  by  the 


G8J:  THE    LAW    OF    MORTGAGES.  [CH.   XXIII. 

constructive.^      Or  such  notice  as  ought  to  put  him  upon 
inquiry .2      Or  if  given  to  an   agent.'^      Or   a   solicitor."*  [d) 

1  Tiernan  v.  Shurnian,  14  B.  Mon.  ^  ]\Iaunce  v.  Byars,  11  Geo.  180. 

377.  *  Frail  v.  Ellia^  17  Eng.  Law  &  Eq. 

^  Briscoe  v.  Bronaugh,  1  Tex.  326 ;  457. 
Frail  v.  Ellis,  17  Eng.  Law  &  Eq.  457. 


takina  of  collateral  personal  security  from  a  tliird  person,  did  not  apply,  the 
mortgagor  being  the  real  vendee,  and  the  mortgage  upon  the  land  itself; 
that  the  implied  waiver  of  a  lien  (it  seems)  can  be  set  up  only  by  purchasers 
without  notice  ;  and  that  the  title  of  the  vendor  should  prevail.  Stafford  v. 
Van  Rensselaer,  9  Cow.  316 ;  Van  Rensselaer  v.  Stafford,  1  Hopk.  569. 

D.,  the  vendee  of  two  tracts  of  land,  part  of  the  original  purchase-money 
for  which  remained  unpaid,  sold  one  tract  to  A.,  with  notice  that  this  bal- 
ance was  still  due.  On  appeal  by  A.,  from  a  decree  ordering  the  sale  of 
both  tracts,  for  cash,  to  satisfy  the  original  vendor's  lien ;  it  was  held,  that 
such  balance  was  properly  regarded  as  a  lien  on  both  tracts,  that  A.  had 
a  right  to  insist  on  the  original  vendor's  coming  upon  the  tract  remaining 
in  D.'s  hands,  and  to  insist  that  the  proceeds  of  its  sale  should  first  be  applied 
in  discharge  of  the  lien,  before  any  resort  should  be  had  to  the  tract  pur- 
chased by  him,  and  that  a  sale  should  be  decreed  for  reasonable  credit,  and 
not  for  cash.     Alford  v.  Helms,  6  Gratt.  90. 

(J)  And  notice  may  be  given  hi/  as  well  as  (o  an  attorney.  Thus  a  testa- 
tor devised  his  real  estates  to  A.  in  fee,  charged  with  his  debts.  A.,  In  1811, 
contracted  with  C.  to  sell  part  of  the  real  estate,  the  purchase-money  to 
be  paid  two  months  after.  C.  was  immediately  let  into  possession.  The 
purchase-money  was  not  paid.  In  January,  1812,  A.  was  declared  a  bank- 
rupt. In  October,  in  the  same  year,  C.  contracted  to  sell  part  of  the  same 
real  estate  to  E.,  who  was  let  Into  possession,  but  his  purchase-m^ney  was  not 
paid.  C  made  his  will  In  1817,  by  which  he  devised  his  real  and  personal 
estate  to  trustees  upon  trust  to  pay  his  debts,  and  then  upon  trust  for  his 
children,  and  died  in  1827,  The  trustees  refused  to  act,  and  the  widow  of 
C.  and  her  children  filed  a  bill  for  the  appointment  of  trustees,  and  in  that 
suit  F.  and  G.  were  appointed  new  trustees.  In  1834,  the  attorney  for  F. 
and  G.  gave  notice  to  the  assignees  of  A.,  that  the  purchase-money  for  the 
property  comprised  In  the  contract  of  1811,  and  interest  or  rent  in  respect 
of  the  land,  were  ready  to  be  paid,  for  the  express  purpose  of  completing 
the  agreement.  In  1844,  the  money  not  having  been  paid,  the  assignees 
filed  a  bill  against  F.  and  G.,  the  trustees  of  the  will  of  C,  and  against  the 
parties  beneficially  Interested  thereunder,  and  against  E.,  the  sub-purchaser, 
and  otiiers,  praying  a  declaration  that  the  plaintiff  had  a  lien  on  the  estate 
for  the  unpaid  purchase-money.     Held,  the  notice  from  the  attorney  for  F. 


CH.  XXIII.]     EQUITABLE    MORTGAGES. VENDOR'S    LIEN.  685 

And  knowledge  that  part  of  the  price  is  unpaid,  thou«rh  not 
how  ranch,  or  how  secured,  is  sufficient  to  put  a  purchaser 
on  inquiry.!  (e)  So  if  the  purchaser  might  know  of  the 
lien  by  examining  the  first  vendee's  title-deed,  he  is  charge- 
able with  notice.2  So,  if  the  vendor  remain  in  possession,  the 
purchaser  is  bound  to  inquire  into  the  title;  more  especially 
if  the  vendor  has  not  actually  conveyed,  even  though  lie  had 
notice  of  the  proposed  transfer  and  failed  to  disclose  his  lien.^ 
A  recital  that  the  consideration  remains  unpaid  has  been 
held  insufficient  notice.*  Though  the  vendor  cannot  claim  a 
larger  sum.^  (/)     So  where  the  deeds,  constituting  the  chain 

1  Manly  v.  Slason,  21  Verm.  271.  *  7  B.  Mon.  312;  Thornton  v.  Knox 

2  Honore  v.   Bakewell,  6   B.   Mon.  6  Ibid.  74 ;  Woodward  i-.  Woodward' 
67.  7  Ibid.  116. 

3  Hopkins   v.    Garrard,   7   B.  Mon.  ^  Kilpatrick  v.  Kilpatrick,  20  Miss. 
312  ;  Dyer  v.  Morton,  4  Scam.  146.  124. 


and  G.  was  an  acknowledgment  in  writing  within  the  meaiiin'f  of  the  40th 
section  of  the  statute  3  &  4  Will.  IV.  c.  27 ;  that  a  person  by  whom  "  the 
money  is  payable,"  means,  in  the  case  of  a  claim  by  equitable  lien,  the  per- 
son entitled  to  the  land  on  which  the  charge  is  sought  to  be  fi.xed ;  and  that 
this  acknowledgment,  being  by  devisees  in  trust  for  payment  of  debts,  was 
good  as  against  the  cestui  que  trust  under  the  same  will.  Toft  v.  Stephenson, 
9  Eng.  Law  &  Eq.  80.' 

There  being  no  proof  as  against  the  cestui  que  trust  that  the  attorne)-  who 
wrote  the  notice  was  in  fact  the  agent  of  the  devisees  in  trust,  the  Court 
granted  an  inquiry.     Ibid. 

(e)  In  Kentucky,  under  Rev.  Sts.  c.  80,  §  26,  a  vendor  has  no  lien  against 
a  purchaser  of  the  vendee,  unless  it  is  expressly  stated  in  the  deed  what 
part  of  the  consideration  remains  unpaid  ;  even  notwithstanding  notice, 
that  a  portion  of  the  purchase-money  remains  unpaid.  Chapman  v.  Stock- 
well,  18  B.  Mon.  650. 

(/)  An  administrator's  deed  showed  that  the  land  had  beloiigcd  to  his 
intestate,  and  was  sold  by  order  of  Court,  and  that  part  of  the  j)ricc  had  not 
become  due.  Held,  a  purchaser  was  justly  chargeable  with  notice  of  a  lien 
for  the  price.     Hoggatt  v.  Wade,  10  Sm.  &  M.  143. 

A  bill  to  enforce  the  lien  of  a  vendor  alleged.,  that  the  deed  set  forth  a 
description  of  the  bills  given  for  the  consideration,  and  by  whom  they  were 
drawn  and  indorsed,  but  also  alleged,  that  such  description  was  given  in  order 
to  give  notice  that  the  price  was  unpaid,  and  to  retain  the  vendor's  lien. 
Held,  the  bill  was  not  bad  on  demurrer.  Campbell  v.  Baldwin,  J  llumpli.  21.s. 

A  writing  at  the  foot  of  a  deed,  signed  by  one  of  the  grantees,  stating  that 
VOL.  I.  58 


686  THE    LAW    OF   MORTGAGES.  [CH.    XXIII. 

of  title  under  which  the  last  purchaser  holds,  show  that  the 
purchase-money  has  not  been  paid,  it  will  be  held  to  be  notice 
of  the  lien.  Though  in  such  cases  the  burden  of  proof  rests 
upon  the  party  proving  the  lien.^  And  the  lien  need  not  be 
recorded,  and  is  not  within  the  registration  acts.^  So  the 
lien  exists,  although  the  vendee  be  solvent.'^  So  the  original 
vandor,  on  a  resale  of  the  land,  may  look  to  the  land  and  not 
the  proceeds  for  his  payment,  especially  if  he  gives  notice  of 
his  lien.  The  lien  of  the  vendor  is  on  the  whole  and  every 
part  of  the  land,  whether  the  vendee  has  been  evicted  by 

1  McAlpin  V.  Burnett,  23  Tex.  649.  ^  Pierson  v.  David,  1  Clarke,  (Iowa,) 

2  1  Tex.  326.  23. 

one  instalment  of  the  purchase-money,  recited  in  the  deed  to  have  been  paid, 
still  remained  unpaid,  is  notice  to  a  purchaser  of  the  grantees,  of  the  lien  of 
the  grantor,  though  the  lien  has  not  been  recorded.  Scott  v.  McCullock, 
13  Miss.  13. 

The  plaintiff  purchased  land,  but  took  no  conveyance.  He  afterwards 
sold  it,  and  his  grantee,  still  owing  part  of  the  price,  conveyed  the  land,  with 
general  warranty,  but  referring  to  the  agreement  with  the  plaintiff,  to  trustees 
for  the  benefit  of  creditors.  The  plaintiff  then  brought  a  suit  against  the 
heirs  of  his  grantor  to  obtain  the  title,  and  a  decree  was  made,  appointing  a 
commissioner  to  convey  to  the  plaintiff;  but  the  commissioner,  by  the  direc- 
tion of  the  plaintiff,  conveyed  to  the  purchaser  from  the  plaintiff.  The  trus- 
tees then  sold  the  land,  and  the  plaintiff  files  a  bill  to  subject  it  for  the  bal- 
ance of  the  purchase-money  due  him  from  his  vendee,  being  insolvent.  The 
trustees  and  purchaser  from  them  denied  having  notice  that  the  purchase- 
money  was  due,  at  the  time  of  conveyance  to  the  trustees,  and  there  was  no 
proof  of  notice.  Held,  the  land  was  liable  for  the  purchase-money  due  the 
plaintiff.     Beirne  v.  Campbell,  4  Gratt.  125. 

A  purchaser  of  land  paid  Si, 000,  and  gave  a  bond  for  $2,000,  payable  in 
two  years,  and  containing  a  memorandum  below  the  seal,  that  the  land 
should  be  liable  for  the  $2,000  till  paid.  The  obligee  assigned  the  bond, 
but  a  few  days  previously  the  purchaser  conveyed  the  land  to  one  who  had 
loaned  him  $1,200,  taking  back  a  bond  of  defeasance.  The  sub-purchaser 
had  notice  of  the  bond  first  mentioned,  and  of  its  indorsement.  The  as- 
signee of  the  bond  brings  a  bill  in  equity  against  the  obligor,  praying  a  sale 
of  the  land.  Held,  the  sub-purchaser,  having  notice,  was  chargeable  with 
the  lien ;  and,  on  a  similar  principle,  the  plaintiff  should  have  the  benefit  of 
it;  that  an  equitable  lien  was  assignable,  as  well  as  a  legal  mortgage.  De- 
creed, that  the  plaintiff  should  recover  the  sum  due,  or,  if  not  paid  in  a  cer- 
tain time,  the  land  to  be  sold.     Eskridge  v.  McClure,  2  Yerg.  84. 


CH.  XXIII.]     EQUITABLE   MORTGAGES.  —  VENDOR'S   LIEN.  087 

title  paramount  from  a  portion  or  not;  though  the  amount 
must  be  reduced  proportionately  to  the  loss.^ 

22.  In  a  suit,  brought  by  an  assignee  of  the  note  made  to 
the  vendor  for  the  purchase-money,  to  enforce  the  lien  against 
a  purchaser  with  notice,  it  is  no  defence,  that  the  original 
vendor  had  not  a  good  title  at  the  time  appointed  for  a  con- 
veyance, the  contract  being  unrescinded,  and  a  title  having 
been  obtained  and  tendered  by  him  before  the  suit  was  com- 
menced.2 

23.  Where  a  vendor  has  a  lien,  and  his  vendee  sells  part 
of  the  land  without  disclosing  the  lien,  the  second  vendee 
may  compel  the  first  vendor  to  enforce  his  lien  on  the  residue 
of  the  land,  or  else  to  proceed  at  once  in  the  collection  of  his 
debt.3     (See  §  26.) 

23  a.  A  vendor,  like  a  mortgagee,  may  lose  his  lien  by 
any  concealment  or  misrepresentation,  through  which  a  third 
person  is  induced  to  purchase  the  land,  as  unincumbered.* 
But  the  lien  of  the  first  grantee,  who  himself  sells  the  land, 
will  not  be  affected  by  representations  of  the  grantor  to  a 
subsequent  purchaser,  that  he  will  take  an  unincumbered 
title.5 

24.  The  general  rule,  that  a  vendor  has  a  lien  against  sub- 
sequent purchasers  having  notice,  so  far  as  it  relates  to  actual 
notice  of  the  lien,  properly  applies,  where  the  vendor  has 
parted  with  his  title,  and  not  where  the  vendee  simply  holds 
a  bond  for  a  deed,  upon  full  payment  of  the  purchase-money. 
In  the  latter  case,  a  purchaser  cannot  ordinarily  be  regarded 
as  3.  bond  fide  purchaser  without  notice;  because  he  might 
have  known  of  the  lien  by  examining  the  title  of  his  vendor. 
All  the  incidents  of  a  mortgage,  so  far  as  the  lien  is  con- 
cerned, attach  to  the  contract  of  sale.^ 

25.  If  a  grantee  sell  the  land  to  another  person,  who  has 
no  notice  that  he  has  not  paid  the  purchase-money,  and  take 
from  the  purchaser  a  note  for  the  purchase-money,  which 

1  Mims  V.  Lockett,  23  Geo.  237.  ^  Rowland  i-.  Day,  17  Ala.  68L 

2  Brumfield  y.  Palmer,  7  Blackf.  227.  ^  Amory  v.  Keilly,  'J  Ind.  4<J0;  ace. 

3  Ammerman    v.   Jennings,    12    B.  Bradford  v.  Harper,  25  Ala.  337.     See 
Mon.  135.  M'Brayer  v.  Collins,  18  B.  Mon.  833. 

«  See  ch.  21;  Burns  v.  Taylor,  23 
Ala.  255. 


THE   LAW   OF   MORTGAGES.  [CH.    XXIII. 

is  assigned  for  a  valuable  consideration  by  the  vendee, 
before  the  sub-vendee  or  the  assignee  has  notice  that  the 
original  vendor  has  not  been  paid  ;  the  equitable  lien  of  the 
latter  will  be  lost,  and  the  assignee  will  be  entitled  to  the 
money  due  on  the  note.  So,  although  the  sub-vendee,  after 
he  was  informed  of  the  non-payment  by  his  immediate  ven- 
dor, said  he  would  not  pay  his  note  unless  he  was  made 
safe ;  and  though  the  assignee  gave  the  maker  of  the  note 
an  indemnity  to  induce  him  to  pay  it.^ 

26.  If  a  vendee  conveys  different  parcels  of  land,  bound 
by  the  vendor's  lien,  to  several  bond  fide  purchasers  at  sev- 
eral times ;  as  between  such  purchasers,  the  lands  are  charge- 
able in  equity  for  the  original  purchase-money  in  the  inverse 
order  of  their  alienation.  (See  §  23.)  Thus  a  vendee  sold 
one  lot  to  a  bond  fide  purchaser  for  value,  and  subsequently 
conveyed  another  lot  in  trust  to  secure  a  creditor.  The  lat- 
ter was  sold  under  the  trust  and  purchased  by  the  creditor, 
who  afterwards  purchased  of  the  original  vendor  the  ven- 
dee's notes  for  the  original  purchase-money.  Held,  such 
creditor  had  no  claim  on  the  owner  of  the  first  lot  for  a 
proportionate  contribution  to  the  amount  of  the  notes.^ 

27.  The  death  of  the  vendee  does  not  defeat  the  lien  of 
the  vendor  for  the  purchase-money  of  the  estate ;  and  this, 
although  by  the  laws  of  the  State  in  which  the  land  is  sit- 
uated, as  is  universally  the  case  in  the  United  States,  lands 
are  by  express  statutory  provision  made  liable  for  the  debts 
of  one  deceased  upon  a  deficiency  of  personal  property.  It 
is  said,  the  heir  cannot  be  permitted  to  hold  what  his  an- 
cestor unconscientiously  obtained.  And,  after  recovering  a 
judgment  at  law  against  the  administrator  of  the  vendee 
upon  a  note  given  for  the  purchase-money  ;  upon  a  defi- 
ciency of  personal  estate,  the  vendor  may  have  a  decree  in 
Chancery  to  have  the  estate  sold.^     So,  although  the  ven- 

1  Houston  V.  Stanton,  11  Ala.  412.        1  B.  Men.  257  ;  Carr  v.  Hobbs,  11  Md. 

2  Wright  V.  Atkinson,  3  Sneed,  585;     285;  Pintard  v.  Goodloe,  1  Hemp.  502; 
Crafts  V.  Aspinwall,  2  Comst.  291.  Gaboon  i'.  Robinson,  6  Cal.  225 ;  iSliall  v. 

»  Garson  v.  Green,  1  Johns.  Ch.  308;  Biscoe,  18  Ark.  142  ;  Pounds  v.  Gast- 

Eskridge    v.    McClure,    2   Yerg.    84;  man,  29  Miss.  133  ;  Delassus  y.  Poston, 

Hughes  V.  Kearney,  1  Sob.  &  Lef.  132;  21  Mis.  543;  Fisher  v.  Johnson,  5  Ind. 

White  V.  Casanane,  1  Har.  &  J.  106,  492 ;  Bisland  v.  Hewitt,  11  S.  &  M.  164. 


CH.  XXIII.]       EQUITABLE    MORTGAGES. VENDOR'S    LIEN.  ()80 

dors  had  the  notes  for  the  purchase-money  allowed  aj^aiiist 
the  estate  of  the  vendee  after  his  death,  tliey  may  still  resort 
to  the  land  for  payment  of  the  balance.^  So  although,  hav- 
ing the  legal  title,  they  requested  the  administrator  to  pro- 
cure a  sale  of  the  vendee's  interest;  if  such  interest  was 
bought  with  notice  of  the  lien.^ 

28.  The  widow's  right  of  dower  has  also  been  held  subject 
to  the  vendor's  lien  for  the  purchase-money  ;  more  especially 
where  there  has  been  only  a  bond  for  a  deed,"^  or  a  lien  is 
expressly  reserved,  (g-)  Thus  land  was  sold  and  a  part  of  the 
price  paid,  the  vendor  giving  bond  to  convey  upon  payment 
of  the  balance.  The  purchaser  having  died,  held,  his  widow's 
right  of  dower  was  subject  to  the  vendor's  right  of  having 
the  land  sold  for  payment  of  such  balance;  and  that  the  pur- 
chaser, at  such  sale,  under  a  decree  in  equity,  took  a  title 
clear  of  the  claim  of  dower,  the  widow  being  entitled,  how- 
ever, to  one  third  of  the  surplus  proceeds  for  her  life.*  So, 
in  the  case  of  Nazareth,  &c.  v.  Lowe,^  one  Kelly  bought  a  lot 
of  land  for  a  certain  price,  payable  at  a  future  time.  Subse- 
quently, the  vendor  conveyed  to  him,  reserving  in  the  deed  a 
lien  for  the  consideration,  no  part  of  which  was  paid.  Held, 
after  his  death,  his  widow's  right  of  dower  was  subject  to 
this  lien.  Robertson,  C.  J.,  says  :^  —  "  The  lien  was  coeval 
with  the  inception  of  Kelly's  equitable  right  to  the  lot.  Kelly 
acquired  the  equity  subject  to  that  lien,  and  his  wife's  initiate 
right  of  dower  could  not  have  been  better  or  greater  than  her 
husband's  original  right  to  the  lot.  The  title  and  the  lien 
being  connate,  there  never  was  any  right  in  Kelly  or  his  wife, 
unincumbered  by  the  lien ;  and  the  conveyance  to  Kelly  hav- 

1  Delassus  v.  Poston,  19  Mis.  425.        408:  Bisland  v.  Hewett,  II   S.  &  M. 

2  Ibid.  164. 

«  Crane  v.  Palmer,  8  Blackf.  120;        ^  1  B.  Mon.  257. 
Fisher  v.  Johnson,  5  Ind.  492.  "  Ibid.  258. 

*  Williams    v.   Woods,   1    Humph. 


(^)  Where  a  right  of  dower  in  land  is  subordinate  to  the  seller's  lien  for 
unpaid  purchase-money,  the  widow  may  compromise  for  it  by  parol.  Maliu 
V.  Coult,  4  Ind.  535. 

58* 


690  THE   LAW    OF   MORTGAGES.  [CH.  XXIII. 

ing  expressly  reserved,  the  lien,  his  legal  right,  and  that  of 
course  also  of  his  wife,  were  subject  to  that  incumbrance, 
just  as  their  equitable  rights  had  always  been.  Her  claim  to 
dower  is  posterior,  in  fact  and  in  law,  to  the  reserved  lien  for 
-the  original  consideration."  So,  where  land  of  a  deceased 
person  is  sold,  as  incapable  of  division,  and  purchased  by  one 
of  his  children,  who  gives  bond  for  the  purchase-money,  but 
never  procures  a  conveyance,  the  widow  of  the  purchaser 
cannot  be  endowed  to  the  prejudice  of  the  other  children, 
who  retained  a  lien  on  the  land  for  their  share  of  the  purr 
chase-money.' 

29.  Upon  the  same  principle,  as  bearing  upon  the  relation 
of  husband  and  wife,  where  land  w^as  purchased  by  a  hus- 
band with  money  bequeathed  to  his  wife,  it  was  held,  that 
the  vendor  had  a  lien  on  the  land  for  his  purchase-money, 
whether  it  was  bought  for  the  separate  use  of  the  wife  or 
not.^  So  where  the  deed  is  made  directly  to  the  wife,  she  is 
not  regarded  as  a  purchaser,  but  a  mere  volunteer,  subject  to 
the  vendor's  lien.^  So  the  purchaser  of  land  gave  back  a 
note  and  mortgage  for  part  of  the  price,  which  were  assigned. 
The  assignee  afterwards  made  a  loan  to  the  mortgagor,  tak- 
ing from  him  another  note,  and  a  new  mortgage  of  the  land 
with  other  land,  and  discharging  and  cancelling  the  old 
mortgage.  In  a  suit  to  foreclose,  the  wife  of  the  mortgagor 
intervened  for  a  homestead.  Held,  her  claim  was  subject  to 
the  claim  for  the  balance  of  the  purchase-money,  with  inter- 
est, but  should  have  priority  of  the  other  portion  of  the  as- 
signee's demand.  The  taking  of  the  new  mortgage  was 
regarded  as  indicative  of  an  intention  to  hold  the  land  as 
security  for  the  balance  of  the  price.^  (Ji) 

1  Miller  v.  Stump,  3  Gill,  304.  ^  Upsliaw  v.  Hargrove,  6  Sm.  &  M. 

2  Lynam  v.  Green,  9  B.  Mon.  363.        286. 

*  Dillon  V.  Byrne,  5  Cal.  455. 

(/t)  In  reference  to  tbe  right  of  homestead,  —  a  privilege  somewhat  anal- 
ogous to  that  of  dower,  —  it  is  held,  that  land  on  which  there  is  a  vendor's 
lien  may  become  a  homestead,  subject  to  that  lien  exactly  as  it  exists ;  there- 
fore in  such  a  case  the  husband  cannot  bind  it  by  a  new  contract  as  to  inter- 
est on  the  price  unpaid.     McHendry  v.  Reilly,  13  Cal.  75. 


CH.  XXIII.]       EQUITABLE    MORTGAGES. VENDOR'S    LIEN.  (I'Jl 

30.  It  has  generally  been  held,  that  the  lien  of  a  vendor  for 
the  purchase-money  of  the  land  shall  not  prevail  over  the 
claims  oi  the  vendee's  creditors}  The  leading  case  upon  this 
subject  is  Bayley  v.  Greenleaf.  The  forcible  remarks  of 
Chief  Justice  Marshall,  in  that  case,  applying  to  the  whole 
subject  now  under  consideration,  but  more  especially  to  this 
particular  point,  have  been  already  cited,  (§  8.)  The  facts  of 
the  case  were  as  follows:— In  1792,  a  person  purchased  land, 
and  sold  it  to  one  of  the  defendants,  who  took  his  title  from 
the  first  vendor,  giving  the  second  vendor  a  bond  for  the 
price.  In  March,  1796,  this  bond  was  surrendered,  upon  the 
obligor's  accepting  bills  for  the  amount,  some  of  which  were 
never  paid.  In  September,  1796,  the  second  purchaser  con- 
veyed the  land,  with  other  landr^,  in  trust  for  one  who  was  a 
surety  for  him,  and  to  secure  him  for  future  advances  and 
liabilities.  In  March,  1797,  the  trustee  conveyed  to  the  other 
defendants,  in  trust,  for  the  purposes  mentioned  in  the  deed 
to  the  trustee.  In  June,  1797,  the  second  purchaser,  with 
two  others,  conveyed  the  land,  with  other  lands,  to  the  other 
defendants,  for  payment  of  their  debts.  Some  doubt  arising 
concerning  the  registration  of  these  deeds,  the  latter  defend- 
ants brought  a  suit  against  the  second  purchaser,  and,  recov- 
ered judgment,  and  the  land  was  bought  upon  execution  for 
them,  and  afterwards  conveyed  to  them  upon  the  former 
trusts.  Both  the  first  and  second  purchasers  had  become 
insolvent,  and  been  discharged  in  bankruptcy  or  insolvency. 
The  first  purchaser,  and  a  trustee  for  his  creditors,  bring  a 
bill  in  equity  against  the  defendants,  to  subject  the  land  to 
payment  of  the  original  purchase-money.  One  of  the  de- 
fendants, the  trustee  above  named,  alleged  that  he  had  con- 
tracted to  sell  the  land  to  the  other,  but,  the  price  not  being 
paid,  that  he  stiU  retained  the  title.  Held,  the  plaintiff's  lien 
should  not  prevail  over  the  claim  of  the  trustee  on  behalf  of 

1  7   Wheat.    46  ;    see    Aldridge    v.     14  Geo.  216.    But  see  Lewis  r.  Caper- 
Dunn,  7  Blackf.  249 ;  Taylor  v.  Bald-    ton,  8  Gratt.  148. 
win,  10  Barb.  626  ;  Webb  v.  Robinson, 


692  THE  LAW  OF  MORTGAGES.        [CH.  XXIII. 

creditors.^  So  in  Gann  v.  Chester,^  it  was  held  that  a  ven- 
dor cannot  assert  his  lien  against  other  creditors.  Catron, 
C.  J.,  says:^ — "  In  Tennessee,  our  uniform  policy  has  been 
to  permit  the  most  unrestrained  alienation  of  lands,  and  to 
hold  them  liable  for  the  payment  of  debts,  the  same  as  per- 
sonal property.  No  lien  exists  on  the  slave  or  other  personal 
property,  for  unpaid  purchase-money;  and  the  rule  that  the 
vendor  of  land  has  such  lien,  was  adopted  from  the  British 
courts,  grounded  on  a  policy  in  reference  to  the  liability  of 
real  estate,  essentially  dissimilar  to  ours.  By  our  statutes, 
where  a  regular  mortgage  is  taken,  and  the  lien  created  in 
the  most  formal  manner,  if  it  be  not  registered  in  the  time 
prescribed,  it  does  not  affect  the  creditors  of  the  mortgagor. 
They  may  seize  and  sell  the  estate.  It  would  be  most  in- 
consistent to  say,  that  a  secret  lien  for  unpaid  purchase- 
money  could  be  set  up,  ten  years  after  the  vendee  had  been 
in  the  visible  occupancy  and  ownership.  The  attempt  to 
enforce  the  lien  against  the  creditor's  legal  title,  is  now  made 
for  the  first  time  in  this  State.  That  the  like  has  been  done 
in  any  American  court,  we  are  not  informed."  The  learned 
Judge  adds,  the  case  of  Bayley  v.  Greenleaf  "  meets  the  de- 
cided and  unanimous  approbation  of  this  Court."  *  (i) 

1  Bayley  v.  Greenleaf,  7  Wheat.  46.        3  ibjd.  207. 

2  5  Yerg.  205 ;  ace.  Roberts  v.  Rose,        *  Ibid. 
2  Humph.  147. 


(i)  These  decisions  are  sustained  by  the  following  English  case,  in  •which 
some  apparently  contradictory  authorities  are  examined,  and  held  not  to  be 
really  inconsistent  with  the  doctrine  as  above  stated. 

In  Fawell  v.  Heelis,  (Ambl.  724,)  it  was  held,  that  where  the  vendor  takes 
a  bond  for  the  price,  he  has  no  lien  against  the  vendee's  creditors,  for  whose 
benefit  the  estate  has  been  assigned.  Lord  Apsley,  Chancellor,  says  (Ibid. 
726)  :  "  Q.  Whether  plaintiff  has  an  equitable  lien  against  the  creditors.  It 
was  laid  down  as  a  general  rule,  that  the  seller  has  such  a  right,  not  only 
against  the  purchaser,  but  against  his  creditors.  Three  cases  cited.  Chap- 
man V.  Tanner,  1  Vern.  26  7  ;  according  to  the  report  it  is  in  point ;  but  it 
appears  by  the  Register's  book  that  the  seller  was  to  keep  the  title-deeds 
till  he  was  paid.  The  Court  said,  that  a  natural  equity  arose  from  his  hav- 
ing the  deeds  in  his  custody.     Polixfen  v.  Moore,  3  Atk.  272,  very  inaccu- 


CH.  XXIII.]      EQUITABLE   MORTGAGES.  —  VENDOR'S    LIEN.  093 

31.  But,  contrary  to  this  general  doctrine,  sustained  by  the 
authorities   cited  in  the  last  note,  where  land  was  sold  by 
parol,  the  vendor  retaining  the  title-deeds,  and  the  vendee  took 
possession,  and  commenced  building  a  house,  the  vendor  was 
held  entitled  to   the   consideration-money  against  the  lien 
creditors.!     So,  in  distributing  the  proceeds  of  a  sherilV's  sale, 
a  lien  for  the  balance  of  the  purchase-money,  subject  to  which 
the  land  was  conveyed  to  the  defendant,  was  allowed  prior- 
ity over  subsequent  judgment-creditors-'-^     So  A.  sold  land  to 
B.,  and  retained  the  title  as  security  for  the  purciiase-money, 
and  a  balance  remained  unpaid.     Judgment  was  rendered, 
and  execution  issued,  against  B. ;  and  the  land  purchased 
from  A.  was  levied  upon.     After  the  execution  was  returned, 
and  before  a  venditioni  exponas  was  issued,  B.  paid  the  bal- 
ance of  the  purchase-money.     Held,  B.'s  interest  in  the  land, 
before  he  paid  the  balance  of  the  purchase-money,  could  not 
be  sold  under  execution,  neither  could  land,  to  which  he  ac- 
quired title  after  the  return  of  the  execution,  be  sold  under 
the  venditioni  exponas.^ 

32.  And  the  vendor's  lien  will  prevail  against  a  voluntary 

1  Kline  v.  Lewis,  1  Aslim.  31.  »  Badham  v.  Cox,  11  Ircd.  45G. 

2  Barnitz  v.  Smith,  1  W.  &  S.  142. 


rately  reported.  J.  P.  seised  in  fee,  after  the  death  of  his  mother,  of  Or- 
chard's farm,  agreed  to  sell  for  £l,200,  and  delivered  possession  to  Moore  ; 
afterwards  P.  let  the  farm,  and  received  the  rents ;  but  by  reason  that  the 
purchase-money  was  not  paid,  he  kept  the  title-deeds.  Bill,  to  have  the 
purchase  completed,  he  offering  to  account  tor  the  rents,  and  to  deliver  up 
the  deeds.  The  question  in  the  cause  was.  How  to  secure  the  legatee. 
Fordiff  V.  Scrugham,  8th  December,  1769,  before  Lord  Camden.  The  de- 
cree is  right,  but  did  not  proceed  on  this  notion  of  equitable  lien  upon  the 
estate.  In  this  case  it  does  not  appear  that  it  was  the  intention  of  the  par- 
ties, that  the  vendor  should  have  such  a  lien,  but  a  receipt  taken  for  the 
consideration-money,  on  the  back  of  the  deed,  and  the  bond  was  accepted 
as  a  satisfaction  for  the  purchase-money.  If  the  vendor  parts  with  his  es- 
tate, and  takes  a  security  for  the  consideration-money,  there  is  no  reason 
for  a  court  of  equity  to  assist  liiui  against  the  creditors  of  the  purchaser. 
Dismiss  the  bill." 


694  THE   LAW    OF   MORTGAGES.  [CH.  XXIII. 

conveyance,  made  by  the  vendee,  in  trust  for  the  benefit  of 
his  creditors,  in  consideration  of  preexisting  debts  ;  where  a 
bill  has  been  brought  to  enforce  such  lien,  before  the  creditors 
have  signified  their  acceptance  of  the  assignment,  by  some 
distinct  affirmative  act,  indicating  their  election  to  claim  or 
take  benefit  under  the  deed.^  Thus  a  father  conveyed  to  his 
son,  but  remained  in  possession  of  the  land.  About  a  year 
afterwards,  he  entered  into  a  written  agreement  with  the  son, 
that  the  father  should  retain  and  improve  the  land  during  his 
life,  at  a  nominal  rent,  with  a  provision  for  his  widow,  if  she 
should  survive  him  ;  the  son  agreeing  to  execute  his  bonds 
to  his  brothers  and  sisters  for  four  fifths  of  the  value  of  the 
land,  to  become  due  after  the  father's  death,  being  for  the  bal- 
ance of  the  purchase-money.  The  son  executed  the  bonds, 
and  the  father  remained  in  possession  till  the  son  became 
insolvent,  and  conveyed  the  land  to  trustees  for  benefit  of 
creditors.  The  agreement  was  not  acknowledged  or  re- 
corded. The  father  and  the  obligees  file  a  bill  to  prevent 
a  sale,  pending  which  the  father  dies.  Held,  there  was  lien 
on  the  land  for  payment  of  the  bonds  from  the  proceeds 
of  the  land,  as  against  the  son,  trustees,  and  judgment  and 
general  creditors.^ 

33.  It  is  stated  as  the  general  rule,  that,  in  order  to  give  a 
vendor  a  lien  on  the  land,  there  must  be  a  debt  for  unpaid 
purchase-money,  to  a  fixed  amount,  due  directly  to  the  ven- 
dor? But  still  the  lien  may  often  be  enforced  by,  as  well  as 
against,  other  parties  than  those  originally  concerned  in  the 
sale.  Thus,  where  the  original  vendor  has  died,  an  agree- 
ment of  doubtful  import  between  one  of  his  executors  and  a 
second  purchaser,  the  first  vendee  being  insolvent,  will  not 
have  the  effect  of  discharging  the  vendor's  lien.  Any  agree- 
ment of  this  nature  would  not  so  operate  even  against  the 
party  making  it,  and  still  less  against  his  co-executor.*  So, 
as  will  be  seen  hereafter,  {infra,  §  37,)  in  many  of  the  cases 
where  the  question  of  ivaiver  of  the  vendor's  lien  has  arisen, 

^  Green  v.  Demoss,  10  Humpli.  371.        ^  Patterson  v.  Edwards,  29  Miss.  67. 
2  Repp  V.  Repp,  12  Gill  &  J.  341.  *  Stuart  v.  Abbott,  9  Gratt.  252. 


CH.  XXJIl.]     EQUITABLE    MORTGAGES.  — vendor's    LIEN.  G95 

the  claim  has  been  made  by  an  assignee  of  the  security  taken 
for  the  purchase-money.  And  the  same  right  has  been 
allowed  in  favor  of  parties,  claiming,  not  by  express  assign- 
ment, but  by  mere  equitable  substituLion.  Thus,  where  sure- 
ties were  bound  for  the  price  of  land  sold,  and  had  tiled  a  bill 
for  the  sale  of  it  to  pay  the  debt,  the  purchaser  having  died 
insolvent,  and  pending  the  suit  had  paid  the  debt ;  held,  they 
should  be  presumed  to  have  paid  with  an  understanding  that 
they  should  be  substituted  to  the  lien  of  the  vendor  ]  and, 
though  the  land  had  been  repeatedly  sold  after  the  original 
sale,  as  the  lien  of  the  first  vendor  was  an  elder  equity  than 
that  of  either  of  the  subsequent  purchasers,  it  should  prevail 
over  them ;  they  having  neither  paid  a  consideration,  nor  taken 
deeds.i  So  where  a  purchaser  discharges  the  lien,  equity  will 
substitute  him  in  place  of  the  vendor,  as  against  another 
incumbrancer.2  Thus  a  judgment  attaches  on  land  subse- 
quently purchased  by  the  debtor,  subject  to  the  vendor's  lien  ; 
and  a  third  party,  who  pays  ofl'  the  lien,  is  entitled,  as  against 
the  judgment  creditor,  to  be  subrogated  to  the  vendor's  rights 
and  equities.3  So,  where  A.  purchased  land  of  B.,  but  paid 
no  part  of  the  purchase-money,  and  he  afterwards  releases 
his  title  to  C,  on  his  paying  the  purchase-money,  C,  as  to 
the  right  of  A.'s  widow  to  dowser,  is  subrogated  to  the  rights 
of  B.\ 

34.  But  where  one  of  joint  purchasers  discharges  the  lien, 
he  will  not  in  all  cases  be  substituted  to  the  lien  of  the  ven- 
dor.^ So  one  person  cannot  acquire  a  lien  upon  land  pur- 
chased by  another  under  an  executory  contract,  by  an  unau- 
thorized payment  of  the  purchase-money.^  And  it  has  been 
held,  that,  where  a  vendor  gives  a  deed  and  takes  the  note 
of  the  vendee,  indorsed  by  a  third  person,  the  indorser  is  not 
entitled  to  have  the  land  set  aside  for  the  payment  of  the 
purchase-money,  where  he  has  not  made  it.'^     So  if  the  land 

1  Kleiser    v.    Scott,    6   Dana,   138  ;  »  pggt  v.  Beers,  4  Ind.  46. 

Ghiselin  v.  Fergus,  4  Har.  &  J.  522.  *  Fisher  v.  Johnson,  5  Ind.  492. 

But  see  Foster  V.  Trustees,  &c.  3  Ala.  ^  Glasscock  v.   Glasscock,   17  Tex. 

302.  480. 

^  Planters',  &c.  v.  Dodson,  9  Sra.  &  '^  Trucsdell  v.  Callaway,  G  Mis.  605. 

M.  627.  ^  Bradford  v.  Marvin,  2  Flor.  463. 


696  THE   LAW   OF  MORTGAGES.  [CH.- XXIII. 

is  sold  to  one  person,  and  the  price  received  from  another, 
who  takes  the  note  of  the  former  therefor,  the  latter  has  no 
lien.^  So,  where  one  of  two  joint  purchasers  died,  and  the 
other  paid  the  whole  price,  and  a  conveyance  was  made  to 
him  and  the  heirs  of  the  deceased  in  common ;  held,  there 
was  no  lien  on  the  share  held  by  the  heirs.^  So  a  third  party, 
who  advances  money  to  a  purchaser  to  enable  him  to  buy 
lands,  cannot  claim  the  benefit  of  the  vendor's  lien.^ 

35.  The  lien  may  be  set  up  both  by  and  against  the  orig- 
inal parties  to  the  conveyance.  Thus,  upon  a  bill  in  equity 
to  foreclose  a  mortgage,  pending  the  bill,  other  parties  were 
brought  in  as  defendants,  and  in  their  answers,  which  they 
made  cross-bills,  alleged  that  the  land  mortgaged  was  con- 
veyed to  the  original  defendant,  by  a  deed  which  recited  pay- 
ment of  the  purchase-money,  when  in  fact  a  credit  was  given, 
and  the  notes  for  the  price  had  never  been  paid,  but  had  been 
assigned  to  them,  thus  giving  them  the  lien  of  the  vendor,  in 
preference  to  the  plaintiff's  mortgage.  The  plaintiff  alleged 
in  reply,  that  the  notes  were  given  upon  a  joint  sale  of  the 
land  and  a  stock  of  merchandise ;  that  he  was  a  purchaser 
for  valuable  consideration,  without  notice ;  and  that  the  pur- 
chase-money remained  unpaid  when  he  took  his  mortgage. 
Held,  it  not  appearing  what  portion  of  the  notes  were  given 
for  the  land,  no  decree  could  be  made  to  establish  the  alleged 
lien ;  and,  the  mortgagee  being  ignorant  when  he  took  his 
mortgage,  that  the  purchase-money  was  unpaid,  and  the 
deed  alleging  it  to  be  paid,  the  lien  was  invalid  against 
him.^ 

36.  The  lien  of  a  vendor  is  held  a  proper  subject  of  mort- 
gage ;  and  a  purchaser  under  a  decree  of  foreclosure  acquires 
all  the  vendor's  title,  as  against  him  and  the  mortgagee.^ 

37.  It  may  have  been  gathered  from  many  of  the  author- 
ities already  cited,  and  more  particularly  from  the  series  of 
cases  collected  in  Fish  v.  Rowland,  that  the  question  of  a 

1  Skaggs  V.  Nelson,  25  Miss.  88.  *  Growning  v.  Behn,  10  B.  Mon.  383. 

2  Crane  v.  Caldwell,  14  111.  468.  ^  Trammell    v.   Simmons,   17   Ala. 
8  StanseU  v.  Roberts,  13  Ohio,  148.      411. 


CH.  XXIII,]     EQUITABLE    MORTGAGES.— vendor's    LIEN.  (397 

vendor's  lien  has  generally  arisen,' not  from  a  denial  of  the 
general  doctrine,  but  only  of  its  application  to  the  particu- 
lar case  under  consideration,  in  consequence  of  an  alleged 
waiver  of  the  lien  by  some  act  of  the  party  claiming  it.'  ""in 
reference  to  this  particular  branch  of  the  subject,  the  cases 
will  be  found  peculiarly  uncertain  and  inconsistent.  (;)  So 
far  as  any  settled  rule  can  be  deduced  from  them,  it  may 
be  stated  as  follows:  The  law  presumes  an  intention  to 
retain  a  lien,  and  imposes  upon  the  vendee  the  burden  of 
proving  the  contrary.  As  evidence  of  such  contrary  inten- 
tion, it  was  once  held,  and  such  seems  to  have  been  the  rule 
of  the  civil  law,  that  the  lien  is  defeated  by  the  giving  of  an 
express  and  distinct  security  for  the  purchase-money,  such 
as  a  bond  or  note ;  2  but  it  seems  to  be  now  well  settled,  that, 
in  order  to  discharge  the  lien,  the  vendor  must  take  collateral 
security,  either  in  property  or  the  engagement  of  some  third 
person.  Thus  a  receipt  upon  the  deed  for  the  price  docs  not 
destroy  the  lien,  being  not  conclusive  evidence  of  payment ; 
nor  accompanying  personal  security  i'^  more  especially  where 
the  vendor  remains  in  possession  under  a  parol  agreement 
that  he  shall  do  so  until  payment.*     Or  where  there  has  been 

1  See  Coote,  266.  Manly  v.  Slason,  21  Verm.  271 ;  WJiite 

2  See  Wagliam  v.  Coomes,  14  Ohio,  v.  Dougliertj',  Mart.  &  Y.  309 ;  Itoon 
428;  Williams  v.  Eoberts,  5,  35;  Fol-  v.  Murphy,  6  Blackf.  272;  Hewlett  i-. 
Lett  V.  Reese,  20,  548  ;  Shall  o.  Biscoe,  Thompson,  1  Ired.  Eq.  360 ;  Ualleck 
18  Ark.  142.  v.  Smith,  3  Barb.  267  ;  Sears  v.  Smith 

**  1  Hill,  R.  P.  474,  475 ;  Honore  v.  2  Mich.  243  ;  Vail  v.  Foster,  4  Comst' 

Bakewell,  6  B.  Mon.  67  ;  Thornton  v.  312  ;  Pinchain  v.  Collaril,  13  Te.\.  333 ; 

Knox,  lb.  74;  Palmer,  1  Doug.  (Mich.)  Salmon  c.  Hoffman,  2  Cal.  138  ;  True- 

422;  Cailipbell  v.  Baldwin,  2  Humph,  body  v.  Jacobson,  Ibid.  269;  Walker 

248  ;  Glower  v.  Rawlings,  9  Sm.  &  M.  v.  Sedgwick,  8  Cal.  31)8. 
122;  Johnson  v.   Sugg,  13  Ibid.  346  ;        *  Duval  v.  Bibb,  4  Hen.  &  M.  113. 


(/)  Lord  Eldon,  in  Mackreth  v.  Symmons,  (15  Ves.  344,)  expresses  a 
strong  regret  as  to  the  condition  of  the  question  in  the  English  courts.  He 
says  :  —  "  The  more  modern  authorities  upon,  this  subject  have  brought  it  to 
this  inconvenient  state,  that  the  question  is  not  a  dry  question  upon  tlie  fact, 
whether  a  security  was  taken,  but  it  depends  upon  the  circumstances  of  each 
case,  whether  the  Court  is  to  infier  whether  the  lien  was  intended  to  Ix- 
reserved,  or  that  credit  was  given,  and  exclusively  given,  to  the  person  from 
whom  the  other  security  was  taken." 

VOL.  I.  59 


698  THE    LAW    OF    MORTGAGES.  [CH.    XXIII. 

a  mere  sale,  but  no  actual  conveyance.^  A  vendor,  retain- 
ing the  title  as  security,  retains  the  lien  as  long  as  he  contin- 
ues to  have  a  right  of  action  for  the  purchase-money.^  So, 
where  a  vendor  takes  a  bond  for  the  price,  retaining  the  title, 
he  does  not  lose  his  lien  by  surrendering  the  bond  and  taking 
an  order  upon  a  third  person,  payable  at  a  future  day,  which 
is  not  accepted.  And  he  may  enforce  the  lien  before  the 
order  falls  due.^  So  a  vendee  sold  a  portion  of  the  land, 
with  notice  of  the  vendor's  lien,  and  with  an  agreement  that 
the  second  purchaser  might  arrange  with  the  vendor  for  the 
purchase-money,  provided  he  would  procure  from  the  vendor 
a  release  of  the  vendee  to  that  amount.  The  purchaser  ac- 
cordingly gave  the  vendor  his  note,  and  the  latter  released 
the  vendee,  as  agi'eed.  Held,  the  vendor  still  retained  a  lien 
for  the  whole  purchase-money.*  So  an  agreement,  that  the 
purchase-money  shall  be  in  part  paid  by  the  rents  of  the  land 
sold,  is  no  waiver  of  the  vendor's  lien.  Thus  A.  leased  a 
tenement  to  B.,  and  afterwards  sold  it  to  C,  agreeing  that 
the  rent  reserved  should  be  received  by  A.,  as  so  much  of  the 
purchase-money.  Held,  if  in  consequence  of  the  sale  the 
right  of  the  vendor  to  collect  the  rents  was  lost  or  impaired, 
the  vendee  could  not  release  or  collect  them  without  account- 
ing for  them  to  the  vendor;  and  that  the  agreement  above 
stated  did  not  affect  the  lien.^ 

38.  But  the  taking  of  independent  collateral  security  is  said 
to  be  "  to  some. extent  inconsistent  with  the  continued  exist- 
ence of  the  lien."  ^  And  this  though  the  security  prove 
worthless.^  The  distinction  is  made,  that  a  bond,  note,  or 
covenant  given  by  the  vendee  will  not  amount  to  "  evidence 
of  a  waiver  of  the  implied  lien,"  but  will  only  be  deemed  an 
additional  security,  like  a  bond  accompanying  a  mortgage, 
and  may  be  necessary  to  control  the  receipt  indorsed  on  the 

1  Clower  V.  Eawlings,  9  Sm.  &  M.  ^  Kyles  v.  Tait,  6  Gratt.  44. 

122.  6  Manly  v.  Slason,  21  Verm.  271 ; 

-  Hanna  v.  WUson,  3  Gratt.  243.  Shelby  v.  Perrin,  18  Tex.  515. 

^  Knisely  v.  Williams,  3  Gratt.  265.  "  Johnston  v.  Union,  &c.,  37  Miss. 

(See  §  62.)  526. 

*  Honore  v.  Bakewell,  6  B.  Mon.  67. 
(See  §63.) 


CH.  XXIII.]      EQUITABLE   MORTGAGES.  —  VENDOR'S   LIEN.  (109 

deed,  or  admitted  in  the  body  of  it.  A  bond  by  a  third  per- 
son for  the  purchase-money,  or  with  a  third  person  as  secur- 
ity ;  or  a  lien  agreed  upon  by  keeping  the  deed  of  convey- 
ance as  an  escrow  for  part  of  the  purchase-money,  and  an 
agreement  when  that  is  paid  to  deliver  the  deed,  and  to  take 
bonds  or  negotiable  paper  indorsed  for  the  residue;  evince  a 
design  to  release  the  lien  for  the  residue.  So  would  a  mort- 
gage upon  other  lands  of  the  vendee,  than  those  purchased 
of  the  vendor ;  and  so  might  other  facts  which  manifest  that 
a  "  lien  was  not  intended  by  the  parlies."  ^  And  where  an 
equitable  interest  in  land  was  sold,  and  security  taken  for  the 
purchase-money,  by  which  the  vendor's  lien  was  extinguished, 
and  the  legal  title  afterwards  came  to  him  by  deed  of  trust ; 
he  was  not  allowed  to  retain  such  title  as  security  for  his 
debt.2  So,  w^here  a  part  of  the  price  is  to  be  paid,  and  the 
rest  secured  by  a  deed  of  trust  of  the  land,  and  half  the  cash 
payment  is  made,  and  the  deed  given  ;  there  is  no  lien  for 
the  balance.^  So,  if  A.  sells  to  B.,  and  B.  to  C,  and  by 
an  agreement  between  all  parties  C.  mortgages  to  A.  to 
secure  the  purchase-money  due  A. ;  B.  has  no  lien."*  Nor  is 
there  a  lien,  where  the  vendee  gives  his  notes  to  creditors  of 
the  vendor,  and  afterwards  a  mortgage.^  And  a  vendor  was 
held  to  have  lost  his  lien,  by  taking  other  security  after  two 
years  from  the  sale,  and  conveying  the  land  to  the  vendee 
for  the  express  purpose  of  enabling  him  to  raise  money  on 
it  by  mortgage.^ 

39.  But,  to  constitute  a  waiver,  it  is  held  that  the  security 
must  be  given  in  pursuance  of  the  original  agreement,  and 
not  by  the  vendee's  voluntary  act.'  And  that  taking  other 
specific  security  or  a  surety  is  no  w^aiver  of  the  lien,  where 
no  actual  conveyance  is  made,  and  such  conveyance  may 
be  withheld  till  payment.^     So  that  a  surety,  who  pays  the 

1  Per  Haywood,  J.,  Eskridge  v.  &  M'Clure  v.  Harris,  12  B.  Mon^201. 
M'Clure,  2  Yerg.  84.  See  Schanck  v.  «  Glower  v.  Rawlings,  'J  bm.  &  M. 
Arrowsmith,  1  Stockt.  314.  ■^^?',^      -r^  m  ai   o  n  n\ 

2  FoUett  I'.  Reese,  20  Ohio,  546.  ^  Van  Doren  v.  Todd,  2  Green  Ch. 
8  Phillips  V.  Sanderson,  1  Sm.  &  M.     397.  a  o     „    i  ,q 

^g2  *  Lewis  V.  Caperton,  8  Gratt.  148; 

*  Taylor  v.  Adams,  Gilm.  329.  '  Kleiser  v.  Scott,  6  Dana,  137. 


700  THE   LAW   OF   MORTGAGES.  [CH.  XXIII. 

debt,  shall  be  substituted  to  the  lien  of  the  vendor,  if  a  lien 
were  expressly  reserved.^  And  it  has  been  sometimes  held, 
that  the  lien  is  not  waived  by  taking  a  mortgage  for  security, 
but  shall  prevail  over  a  judgment  recovered  between  the 
making  and  recording  of  the  mortgage.  Though  it  is  in 
general  held  otherwise,  where  a  mortgage  is  taken  on  the 
land  sold.2(^^) 

40.  The  lien  is  not  waived  by  taking  notes  for  the  price, 
though  payable  on  time  ;  ^  more  especially  if  worthless,  and 
if  there  be  any  fraud,  or  if  for.  only  part  of  the  price.*  So, 
though  a  note  may  be  paid  in  specific  property.^  So  the 
taking  of  an  indorser  is  held  not  conclusive  evidence  of 
waiver,  but  liable  to  be  rebutted  by  other  proof.*^  So  the 
lien  may  continue,  notwithstanding  a  renewal  of  the  notes 
originally  given,'^  or  other  extension  of  payment ;  especially 
if  the  lien  is  expressly  reserved  in  such  extension.^  Or  if  the 
note  of  a  third  person  is  substituted  for  that  of  the  vendee.^ 
Or  an  independent  debt  included  in  the  new  note.^*^  And 
the  taking  of  a  bank  check  for  the  price  has  been  held  to  be 
no  waiver.^i     Though  it  is  otherwise,  where  an  order  on  a 

1  Uzzell   I'.   Mack,  4   Humph.  319;  ^  Campbell  v.  Baldwin,  2  Humph. 

Shay  V.  Patty,  1  Cart.  102.  248. 

•■^  Boos    V.    Ewhag,    17   Ohio,   500;  "  Aldridge  r.  Dunn,  7  Blackf.  249 ; 

Young  V.  Wood,  11  B.  Mon.  123.    But  Thornton  v.  Knox,  6  B.  Mon.  74. 

see  Neil  v,  Kinney,  10  Ohio  St.  67.  ^  Truebody  v.  Jacobson,  2  Cal.  269 ; 

3  Manly  v.  Slason,  21  yerm.  271.  Cleveland  v.  Martin,  2  Head,  128. 

*  Slielton    V.    Tiffin,   6   How.    163  ;  9  Tiernan  v.  Thurman,  14  B.  Mon. 

Kercheval,  14  La.  An.  457.  277. 

5  Plowman  v.  Riddle,  14  Ala.  169.  i'^  Mims  v.  Lockett,  23  Geo.  237. 

"  Honore  v.  Bakewell,  6  B.  Mon.  67. 


(Jc)  A  vendor  of  an  absolute  title  has  no  lien  upon  the  property,  by  rea- 
son of  an  unjDaid  mortgage,  giv^n  by  him  upon  other  property,  to  secure  to 
his  vendor,  of  a  portion  of  the  jiroperty  sold,  the  price  of  that  portion  ;  although 
the  vendee  has,  by  agreement,  been  substituted  in  his  place,  for  the  payment 
of  the  price  of  that  portion  of  the  property  sold  to  him.  Schroeder  v.  Pat- 
terson, 4  R.  I.  516. 

Where  a  mortgage,  given  for  part  of  the  purchase-money,  is  so  far  void,  for 
misdescription  or  ambiguity,  as  to  defeat  the  mortgagee's  suit  in  chancery  to 
foreclose,  it  is  void  for  all  purposes,  and  cannot  be  set  up  as  a  waiver  of  the 
vendor's  lien  for  the  purchase-money.*    Davis  v.  Cox,  6  Ind.  481. 


CH.  XXIII.]      EQUITABLE   MORTGAGES.  — vendor's   LIEN.  701 

third  person  is  given,  and  the  vendor  is  guilty  of  laches  in 
notifying  the  vendee  of  non-payment;  thereby  subjecting 
him  to  loss.i  And  whece  a  vendor  took  notes  for  the  price, 
and  gave  bond  to  convey  on  payment  thereof;  though  for 
these  notes  the  notes  of  another  person,  guaranteed  by  the 
purchaser,  were  afterwards  substituted  :  held,  the  vendor  had 
still  a  lien  for  the  price.2  (/) 

41.  Where  a  vendor  retains  the  title,  and  receives  collat- 
eral securities  with  an  agreement  to  collect  them,  and  em- 
ploys the  vendee  to  make  such  collection  ;  he  still  retains  his 
lien  for  the  price,  notwithstanding  the  payment  of  the  securi- 
ties to  the  vendee,  until  the  vendee  accounts  for  the  amount 
received,  even  as  against  judgment  creditors  whose  lien 
accrued  before  the  payment.  And  the  assignee  of  the  ven- 
dor succeeds  to  his  rights  as  existing  at  the  time  of  assign- 
ment.^ 

42.  Where  a  vendor  brings  an  action  for  the  first  instal- 
ment of  the  purchase-money,  recovers  judgment,  and  levies 
execution  upon  the  land,  his  lien  is  gone  ;  and  equity  will 
compel  him  to  convey  the  legal  title  to  the  execution  pur- 
chaser.4  But  a  judgment  against  a  vendee,  by  articles  of 
agreement,  binds  only  his  interest  in  the  land  to  the  extent 
of  the  purchase-money  paid ;  the  balance  is  a  lien  on  the 
premises.      So,  although  after  judgments  obtained  against 

1  Fowler  v.  Rust,  2  A.  K.  Mar.  294.        *  Thompson  v.  McGill,  1  Freem.  Cli. 

2  Anthony  v.  Smith,  9  Humph.  508.    401. 

3  Watson  V.  Willard,  9  Barr,  89. 


(/)  If  the  vendor  transfers  to  a  stranger  the  notes  given  for  the  purcliase- 
money,  and  accepts  for  them  a  bill  of  exchange,  his  lien  on  the  land  is  gone, 
and  the  vendee,  on  making  full  payment  to  the  transferrce,  becomes  oniitled 
to  an  absolute  conveyance  ;  but  if  the  transferree  was  acting  as  agent  of  the 
vendee,  or  was  jointly  concerned  with  him  in  the  purchase,  and  made  the 
arrangement  for  their  joint  benefit,  without  an  express  promise  on  the  part 
of  the  vendor  to  receive  the  bill  of  exchange  in  absolute  payment  of  the 
notes,  and  thereby  to  abandon  his  hen,  the  land  is  still  bound  to  the  vendor 
for  the  payment  of  the  purchase-money  on  the  non-payment  of  the  bill. 
Bradford  v.  Harper,  25  Ala.  337. 
59  * 


T02  •  THE    LAAV    OF   MORTGAGES.  [CH.   XXKI. 

the  vendee,  the  latter,  by  a  parol  agreement,  gives  up  the 
articles  of  agreement,  absolutely,  to  one  to  whom  he  had 
previously  transferred  them  as  coll.ateral  security,  and  the 
latter  receives  a  deed  for  the  premises  from  the  vendor.^ 

43.  Where  an  administrator  sells  land  by  order  of  Court, 
and  takes  personal  security  for  the  price,  he  does  not  thereby 
discharge  his  lien.^  But  where  a  testator  directs  that  his 
lands  be  sold,  and  the  proceeds  divided  among  his  children, 
and  they  sell  their  interest,  taking  bonds  for  the  price ;  they 
have  no  lien  on  the  land.^ 

44.  Where  a  creditor  of  the  vendor  obtains  a  judgment 
against  the  vendee  as  garnishee,  and  sells  the  land,  and  the 
vendor  bids  at  the  sale ;  he  does  not  thereby  waive  his  lien.* 

45.  If  the  vendee  is  evicted  from  part  of  the  land  by  par- 
amount title,  the  lien  is  diminished  yro  tanto.^ 

46.  It  is  sometimes  held,  that  an  assignee  of  a  claim  for 
the  price  has  a  lien ;  ^  more  especially,  where  only  a  bond 
for  title  has  been  given. ^  Or,  where  the  lien  is  expressly 
reserved  in  notes,  payable  to  bearer.^  Thus  if  the  vendor 
assigns  notes  given  for  the  purchase- money,  the  lien  has  been 
held  to  pass  with  them.  And  although  a  deed  is  subse- 
quently made  to  the  vendee,  the  lien  is  held  to  be  good 
against  a  judgment  recovered  after  the  deed.^  And  the 
transfer  may  be  made  by  a  mere  blank  indorsement.^^  So 
where  a  vendor  ass%ns  notes  given  for  the  purchase-money, 
without  indorsement,  it  is  held  that  the  assignee  may  enforce 
a  lien  against  a  purchaser  with  notice.  So  also  may  the 
vendor,  when  the  notes  are  returned  to  him.  {m)     But  not  a 

1  Russell's  Appeal,  15  Peiin.  319.  Terry  v.  George,  37  Miss.  539  ;  19  Tex. 

^  Hoggatt  V.   Wade,   10  Sm.   &  M.  213  ;  M'Alpin  v.  Burnett,  Ibid.  497. 

143.  7  37  Miss.   539.      See  Cleveland  v. 

3  Sharp  V.  Kerns,  2  Gratt.  348.  Martin,  2  Head,  128. 

*  Farmer  v.  Simpson,  6  Tex.  303.  ^  Murray  v.  Able,  19  Tex.  213. 

5  Minis  V.  Lockett,  23  Geo.  237.  ^  Parker  v.  Kelly,  10  Sm.  &  M.  184; 

•^  Honore  v.  Bakewell,  6  B.  Mon.  67.  Kern  v.  ilazlcrigg,  11  Ind.  443. 

See  M'Brayer  v.  Collins,  18  B.  Mon.  i'^  Moore  c.  Raymond,  15  Tex.  554. 
833;  Fisher  v.  Johnson,  5  Ind.  492; 


(iii)  A  vendee  of  land,  having  taken  a  bond  for  conveyance,  to  be  made 


CH.  XXIII.]     EQUITABLE   MORTGAGES.  —  VENDOll's   LIRN.  703 

holder  of  collateral  security  for  the  notes.?  So  thf  lien  of  a 
vendor  for  the  pi3rchase-money  passes  to  the  devisre  of  the 
vendee's  notes.^  So,  where  several  notes  arc  assigned  at 
different  times,  the  assignment  of  each  is,  pro  tanto,  an  as- 
signment of  the  lien,  unless  expressly  waived,  and  the  liens 
are  preferred  according  to  the  priority  of  the  assigimicnts, 
without  reference  to  the  maturity  of  the  notes.^  So  where  a 
memorandum  is  made  upon  the  face  of  the  bond  given  for 
the  price,  that  the  land  shall  be  liable  for  the  debt ;  an  as- 
signee of  the  bond  has  in  equity  the  same  lien  whicli  the 
assignor  had.*  So,  where  land  was  conveyed  by  deeds,  in 
which  there  was  .recited  a  consideration  of  $800,  "  paid  and 
secured  to  be  paid  ;  "  and  the  vendee  gave  his  note  for  part, 
which  the  vendor's  agent  assigned  to  A. :  held,  on  a  bill  by 
the  vendee,  to  enjoin  A.  against  enforcing  his  judgment 
until  the  lien  was  released,  that  as  the  lien,  if  there  were  any, 
passed  with  the  note  to  the  assignee,  it  would  be  extin- 
guished by  payment  of  the  note.^  So  judgments  were  recov- 
ered in  several  actions  by  the  vendor  of  land,  upon  two  notes 
of  equal  amount,  given  for  the  purchase-money.  The  ven- 
dee sold  one  undivided  moiety  of  the  land  to  A.,  and  the  other 
to  B.,  when  each  agreed  to  pay  one  of  the  judgments.  C, 
at  the  request  of  A.  and  B.,  took  an  assignment  of  the  judg- 
inents,  A.  promising  C.  to  pay  him  one  of  the  judgments, 
and  B.  the  other.  The  judgment  which  A.  was  to  pay 
was  paid  to  C.  On  a  bill  to  enforce  the  lien  of  the  vendor 
upon  the  land,  it  was  held,  that  an  undivided  half  of  the 

1  White  V.  Stover,  10  Ala.  441 ;  Nor-  -  Tierman  v.  Beam,  2  Ham.  383. 

veil  V.  Johnson,  5  Humph.  489  ;  Kelly  ^  Griggsby  v.  Hair,  25  Ala.  327. 

V.  Payne,   18  Ala.   37:  Roper  v.  Mc-  *  Eskridge  v.  McClure,  2  \erg.  84. 

Cook,  7  Ala.  818.  '  Wilder  v.  Smith,  12  B.  Mon.  '..4. 


on  payment  of  the  price,  and,  before  such  payment,  a.ssigned  the  bond  ; 
brings  a  bill  in  equity  against  the  assignee  to  enforce  a  lien  for  the  jjurchase- 
money,  not  making  the  original'  vendor  a  party.  Held,  the  suit  could  not 
be  maintained.  Thompson  v.  Williams,  10  Sm.  &  M.  173.  See  Briggs  v. 
Hill,  6  How.  (Miss.)  362;  Claiborne  v.  Crockett,  3  Yerg.  27  ;  Green  v.  De- 
moss,  10  Humph.  371 ;  Wellborn  v.  Williams,  9  Geo.  86. 


704  THE   LAW    OF   MORTGAGES.  [CII.    XXIII. 

land  could  be  subjected  to  the  payment  of  the  outstanding 
judgment.^  So  the  plaintiff  advanced  money  to  another 
person,  to  enter  at  a  land-office  a  tract  of  land  for  him,  which 
the  receiver  of  the  money  did  in  his  own  name,  and  a  patent 
was  issued  accordingly.  Afterwards  the  patentee  was  au- 
thorized by  the  plaintiff  to  sell  the  lands  for  him,  which  he 
did,  taking  notes  for  the  price,  payable  to  the  patentee.  The 
notes  were  delivered,  but  not  indorsed,  to  the  plaintiff,  who 
recovered  judgment  upon  thera  for  his  own  use,  in  the  payee's 
name,  which  remained  unsatisfied.  Held,  the  plaintiff  might 
enforce  a  lien  for  the  purchase-money.^  And  more  especially 
the  lien  is  not  lost,  where  the  vendor  assigns  the  security 
merely  for  payment  of  his  debts,  so  far  as  it  is  sufficient  for 
that  purpose,^  or  as  collateral  for  a  debt.  In  such  case,  the 
assignor  and  assignee  must  join  in  a  suit  to  enforce  the  lien.* 
So  where  the  vendor  has  given  bond  for  title,  from  which, 
of  course,  he  cannot  be  released  without  consent  of  the 
vendee."  (w) 

1  Wilkins  v.  Humphreys,  23  Miss.  *,Plowman  v.  Riddle,  14  Ala.  169 ; 

(1  Cush.)  311.  Betton  v.  Williams,  4  Flor.  11. 

'■^  Graggs  V.  Bailey,  10  Ala.  344.  ^  ibid. 
3  Halleck  v.  Smith,  8  Barb.  267. 

(n)  The  equitable  lien  held  by  the  Court,  for  the  purchase-money  of  land 
sold  under  its  decree,  cannot  be  enforced  by  a  trustee  who  has  assigned  the 
bonds  given  for  its  payment,  whether  made  with  or  without  the  sanction  of 
the  Court.     Hayden  v.  Stewart,  4  Md.  Ch.  Decis.  280. 

Whether,  in  case  of  an  assignment,  the  parties  intended  to  abandon  the 
lien,  is  a  matter  of  fact,  to  be  gathered  from  the  evidence  and  the  nature  of 
the  transaction.     Griggsby  v.  Hair,  25  Ala.  327. 

When  lands  are  purchased  by  a  partnership  from  one  of  its  members,  who 
pledges  his  entire  interest  in  the  company  to  indemnify  it  against  any  loss 
which  it  might  sustain  in  the  purchase,  and  guarantees  that  the  land  can  be 
resold  within  five  years  for  at  least  the  amount  of  the  purchase-money,  and 
the  lands  remain  unsold  after  the  expiration  of  the  five  years ;  an  assignee  of 
the  notes  given  for  the  purchase-money  cannot  assert  a  vendor's  lien,  as 
against  a  member  of  a  company  who  had  guaranteed  their  payment,  and 
had  paid  a  part  of  them.  Nor  against  a  remote  bond  fide  purchaser  of  the 
vendor's  interest  in  the  company,  without  notice.  The  vendor,  being  a 
member  of  the  company,  cannot  assert  a  vendor's  lien,  as  against  subsequent 


CH.  XXIII.]      EQUITABLE   MORTGAGES.  — vendor's    LIEN.  705 

47.  It  has  been  held  in  other  cases,  however,  that,  if  the 
vendor  assigns  his  security  for  the  price  absohitdy,  the  lien 
is  lost.  Also,  that  the  lien  does  not  pass  with"  the  note 
given  for  the  price.i  Thus,  where  an  agent  sells  land  of  his 
principal,  and  fraudulently  takes  a  note  for  the  pfirchase- 
money  in  his  own  name,  which  he  assigns,  the  vendor's  lien 
does  not  pass  to  the  assignee  of  the  notc.2  So  A.  agreed,  in 
1840,  to  sell  a  lot  of  land  to  B.,  who  gave  his  note  for  the 
purchase-money,  payable  in  1846.  On  the  same  day,  A. 
indorsed  the  note  to  C,  and  guaranteed  the  payment.  A., 
with  others,  absconded  to  Alabama,  where  C.  pursued  him, 
and  sued  him  on  B.'s  note,  with  others,  and  compelled  him 
to  compromise,  by  conveying  to  C.  enough  property,  by  mort- 
gage, to  secure  all  the  debts.  C.  agreed  to  extend  the  time 
of  paying  B.'s  note  five  years,  and,  on  A.'s  making  a  clear 
title  to  the  land  agreed  to  be  sold  to  B.,  either  to  B.  or  C,  to 
relieve  him  from  his  liability  as  guarantor.  A.  offered  C.  a 
deed  of  the  lan^,  which  he  refused,  and  A.  sold  it  to  D., 
against  whom  C.  brought  his  bill  to  enforce  his  lien,  as  as- 
signee of  the  vendor's  security.  Held,  C.  did  not,  by  taking 
B.'s  note  with  A.'s  guaranty,  acquire  any  lien  on  the  land, 
but  that  the  transaction  was  a  waiver  of  any  lien,  as  the 
guaranty  was  a  substitution  of  personal  for  real  security,  and 
that  as  against  D.  the  lien  had  been  waived  by  all  these  pro- 
ceedings, if  C.  had  ever  had  a  lien,  which  he,  as  assignee, 
could  enforce.^  So  the  assignee  of  a  note  given  for  the  pur- 
chase-money of  land,  with  surety,  is  not,  after  discharging 
the  surety,  entitled  to  enforce  the  vendor's  lien  on  the  land.* 
48.  A  purchaser  cannot  avoid  the  vendor's  lien  on  the 

1  Webb  V.  Robinson,  14  Geo.  216;  er  i'.  Williams,  30  Miss.  105;  Shall  v. 

Jackman    v.   Halleck,   1    Ham.    318  ;  Biscoe,  18  Ark.  142. 

Brush  V.  Kinsley,  14  Ohio,  20 ;  Taylor  "  Deibler  v.  Barwick,  4  Blackf.  339. 

V.  Foote,  Wi-ight,  356  ;  Horton  v.  Hor-  ^  Woods  v.  Bailej',  3  Florida,  41. 

ner,  14  Ohio,  437 ;  Dixon  v.  Dixon,  1  *  Martin  v.  Lundie,  0  Ala.  427. 
Md.  Ch.  220 ;  25  Ala.  327.    See  Walk- 


creditors,  mortgagees,  or  purchasers,  without  proving  that  they  advanceJ 
their  money  with  notice  of  his  lien.     Coster  v.  Bank  of  Georgia,  24  Ala.  .S7. 


706  THE  LAW  OF  MORTGAGES.        [CH.  XXIII. 

ground  of  luant  of  title  in  the  latter,  unless  he  alleges  and 
proves  the  specific  defects.^  Nor  on  the  ground  of  an  out- 
standing mortgage,  unless  it  be  shown  to  have  been  made 
by  a  party  having  authority  to  execute  it.^  And  where  a 
bill  in  equity  was  brought  against  the  widow  and  heirs  of  a 
deceased  purchaser,  to  enforce  the  vendor's  lien ;  and  the 
widow  set  up  in  defence :  1.  That  the  plaintiff  had  no  title, 
and  the  purchaser  had  consequently  abandoned  the  purchase ; 
2.  That  he  had  paid  the  purchase-money ;  3.  That  since  his 
death  she  had  acquired  a  title,  under  a  deed  of  trust  made 
by  him  ;  held,  the  grounds  of  defence  were  inconsistent  with 
each  other,  and  that  the  plaintiff  was  entitled  to  enforce  the 
lien.^ 

49.  Where  land  is  sold  under  authority  of  the  Orphans' 
Court,  and  a  part  of  the  price  remains  unpaid,  the  interest 
of  which  goes  to  the  widow  for  life,  remainder  to  the  heirs  ; 
the  lien  for  the  price  is  not  discharged  by  a  sheriff's  sale 
under  a  judgment  against  the  purchaser.  Hence,  all  prior 
liens  are  unaffected.* 

50.  But  where  land  is  sold  under  articles,  and  the  vendor 
afterwards  sells  it  upon  a  judgment  for  the  price,  the  judg- 
ment purchaser  acquires  a  legal  title,  discharged  of  the  ven- 
dor's lien  for  the  purchase-money,  and  the  latter  is  entitled 
to  payment,  in  preference  to  liens  prior  to  his  judgment  upon 
the  title  of  the  vendee.^ 

51.  Sale  of  several  lots  on-  credit.  The  vendee  sold  two 
of  them  to  different  purchasers,  the  first  vendor  agreeing  with 
one  of  them  to  release  his  lot  upon  payment  of  a  certain 
sum,  but  not  being  then  informed  that  the  latter  had  sold  to 
a  sub-purchaser.  The  vendor  obtained  a  decree  in  Chancery 
for  a  sale,  to  satisfy  his  lien,  and  assigned  the  decree.  Held, 
the  decree  charged  the  land  held  by  the  sub-purchaser,  not- 
withstanding the  above  arrangement  for  a  release  ;  and  could 
not  be  discharged  by  payment  of  a  sum  corresponding  with 

^  Glasscock  v.  Robinson,  13  Sm.  &        ^  Ibid. 
M.  85.  *  Lauraan,  8  Barr,  473. 

'^  Ibid.  5  Horbach  v.  Riley,  7  Barr,  81. 


CH.  XXIII.]       EQUITABLE   MORTGAGES.  —  VENDOR'S   LIEN.  707 

what  was  paid  under  this  arrangement,  taking  into  view  the 
relative  value  of  the  two  lots.^  (u) 

1  Kirksey  i;.  Mitchell,  8  Ala.  402. 


(o)  A  vendee  gave  his  note  for  part  of  the  price  to  a  creditor  of  the  ven- 
dor, who  gave  credit  to  the  vendor  for  that  amount.  Upon  the  subseriuent 
failure  of  the  vendee,  the  vendor  took  back  the  land  for  a  lower  prite,  and 
sold  it  to  the  creditor,  also  for  a  lower  price  than  the  vendee  had  agreed  for. 
Held,  in  the  absence  of  an  express  agreement,  such  creditor  had  no  lien 
upon  the  land,  which  was  not  subordinate  to  that  of  the  vendor.  Colcord 
V.  Seamonds,  6  B.  Mon.  265. 

A  vendee  sells  to  one  without  notice,  taking  a  note  for  the  price,  which 
is  assigned  for  value,  before  the  maker  has  notice  of  the  non-payment  of  the 
original  consideration.  Held,  the  vendor  could  not  assert  a  lien  against  him, 
and  that  the  assignee  was  entitled  to  payment  of  the  note,  although,  after 
notice  of  the  non-payment,  the  maker  said  he  would  not  pay  his  note,  unless 
he  were  made  safe.  Xor  will  the  assignee's  right  to  retain  the  money  be 
impaired,  by  his  giving  the  maker  an  indemnity  as  an  inducement  to  pay 
the  note.     Houston  v.  Stanton,  11  Ala.  412. 

A.,  a  trustee  under  a  decree  in  Chancery,  to  invest  trust  funds,  agreed 
with  B.,  the  suretj-  in  his  trust  bond,  to  lend  him  a  part  of  the  trust  funds, 
taking  a  mortgage  as  security.  He  accordingly  advanced  half  of  the  sum 
agreed,  undertaking  to  apply  the  balance  to  pay  a  judgment  against  B.  B. 
subsequently  executed  a  mortgage  to  secure  the  whole  amount.  A.  did  not 
pay  the  judgment,  and  the  mortgage  was  never  recorded,  nor  reported  to 
the  Chancellor  for  approval,  but  was  returned  to  the  mortgagor  and  de- 
stroyed. A.  received  trust  money,  which  he  failed  to  invest,  and  was 
removed  from  office,  and  a  new  trustee  appointed.  The  lands  were  sold  by 
the  sheriff  to  the  defendant  for  one  twelfth  part  of  the  amount  advanced  by 
A.  to  B.,  subject  to  prior  judgment  liens,  of  nearly  their  full  value.  The 
ce?tuis  que  trust  file  a  bill,  claiming  a  lien  on  the  lands.  Held,  the  bill 
could  not  be  maintained,  the  circumstances  not  proving  a  certain,  distinct, 
and  consummated  contract  for  such  lien,  between  A.  and  B.  Gill  v.  McAt- 
tee,  2  Md.  Ch.  255. 

An  administrator,  whose  intestate  had  a  lien  for  the  purchase-money  on 
land  sold  to  an  insolvent,  persuaded  the  insolvent  to  sell,  bid  himself  at  the 
sale,  publicly  stated  that  the  purchaser  would  get  a  good  title,  and  proved 
his  claim  against  the  insolvent  estate,  and  received  a  dividend.  Upon  a  bill 
to  enforce  the  lien  without  offering  to  return  the  dividend,  he  was  held  es- 
topped to  object  to  the  purchaser's  title,  without  prejudice  to  the  rights  of 
the  heirs,  if  they  choose  to  attempt  to  assert  them.  Williamson  v.  lioss,  33 
Ala.  509. 


708  THE   LAW    OF   MORTGAGES.  [CH.  XXIII. 

52.  The  lien  of  a  vendor  will  be  barred  by  the  lapse  of 
twenty  years ;  but  whether  by  a  limitation  which  is  suffi- 
cient to  bar  the  personal  claim  of  the  vendor,  is  somewhat 
doubtful.  The  weight  of  authority  seems  to  be,  that  it  is 
not  thus  barred.  An  acknowledgment,  that  the  purchase- 
money  has  not  been  paid,  will  prevent  the  limitation.^  (p) 

53.  The  mode  or  form  of  enforcing  a  vendor's  lien  for  the 
purchase-money  seems  to  be  substantially  the  same  as  that 
of  enforcing  an  ordinary  mortgage ;  by  bill  in  equity  against 
the  vendee  or  those  claiming  under  him.  (q)  But  the  rule, 
that  the  mortgagee  may  pursue  all  his  remedies  at  once,  does 
not  apply  to  a  vendor  having  a  bond  and  equitable  lien  for 
the  purchase-money.2 

54.  Where  a  vendor,  who  has  merely  given  a  bond  for 
title,  brings  a  bill  to  enforce  his  lien,  he  need  not  join  as  a 
party  defendant  an  execution  purchaser  of  the  vendee's  in- 
terest, although  he  is  in  possession ;  unless  he  is  also  owner 
of  the  vendee's  title  under  the  bond ;  the  execution  sale  hav- 
ing passed  nothing.^ 

55.  Where  a  vendor  seeks  to  subject  land  sold,  but  not 
conveyed,  to  payment  of  the  consideration,  the  Court  may 
order  him  to  exhibit,  by  a  certain  day,  a  sufficient  convey- 
ance, with  a  relinquishment  of  dower,  if  he  has  a  wife,  warn- 
ing the  vendee  to  deposit  in  Court,  on  the  same  or  a  suc- 
ceeding day,  the  amount  due ;  and  on  the  filing  of  such  con- 
veyance, and  failure  to  make  the  required  deposit  or  payment, 
may  subject  the  land  to  sale.* 

1  Lingan  v.   Henderson,   1   Bland,  Littlejohn  v.    Gordon,  32  Miss.  235; 

282 ;  Magruder  v.  Peter,  11  Gill  &  J.  Relfe  v.  Relfe,  34  Ala.  500. 

218 ;  Moreton  v.  Harrison,   1   Bland,  -  Barker  v.  Smark,  3  Beav.  64. 

491 ;  Driver  v.  Hudspeth,  16  Ala.  348;  ^  Driver  v.  Clark,  13  Ala.  192. 

Erving  v.  Beaucliamp,  6  B.  Mon.  422 ;  *  Clark  v.  Bell,  2  B.  Mon.  1. 

(p)  In  Alabama,  a  lien  will  not  be  established  in  equity  against  slaves, 
simply  because  a  note  for  the  price  has  become  barred  by  the  statute  of 
limitations.     Mooi-e  v.  Lesueur,  33  Ala.  237. 

(7)  III  Indiana,  a  vendor  is  not  required  to  attach  the  property  of  the  ven- 
dee, though  he  has  absconded.  He  may  enforce  his  lien  in  equity.  Russell 
V.  Todd,  7  Blackf.  239. 


CH.  XXIII.]       EQUITABLE   MORTGAGES.  — vendor's   LIEN.  70'J 

56.  If  a  vendor  has  a.lien,  and  a  mortgagee  under  tl.r  pur- 
chaser brings  a  bill  to  foreclose,  the  Court  should  decree  a 
sale,  and  appropriate  the  proceeds,  first  to  the  payment  of 
the  hen,  and  next  of  the  mortgage.i  (r) 

57.  A  biU  to  enforce  a  lien  should  fully  describe  the  eon- 
tract  of  sale,  and  the  non-payment  of  the  price."-^ 

58.  The  usual  decree  in  a  suit  of  this  nature  is  for  a  sale 
of  the  land,  unless  the  debt  be  paid  by  a  certain  day.'^  In 
justification  of  this  course  of  proceeding,  as  applied  to  a 
purchaser  fi-om  the  first  vendee,  the  Court  in  Georgia  remark 
as  follows:  —  "  The  title  to  his  land  has  been  vested  in  the 
company  by  operation  of  law.  The  corporation  having  com- 
plied strictly  with  the  provisions  of  its  charter,  he  cannot 
maintain  trespass  or  ejectment.  A  suit  upon  the  certificate 
would  be  wholly  unavailable,  owing  to  the  insolvency  of  the 
company.  He  is  consequently  wholly  remediless,  unless 
equity  will  interpose  for  his  relief,  by  decreeing  a  sale  of  the 
property  for  the  payment  of  the  purchase-money.  And  we 
are  of  the  opinion  that  he  is  entitled  to  this  relief.  Nor  will 
this  judgment  serve  in  the  least  to  impede  or  obstruct  the 
great  enterprise.  The  present  proprietors,  who  bought  with 
notice,  have  only  to  pay  to  this  citizen  the  price  put  upon 
his  property  by  commissioners  appointed  for  that  purpose, 
upon  their  own  application.""* 

59.  A  decree  to  enforce  the  vendor's  lien  has  been  held 
erroneous,  if  it  does  not  name  a  day  for  the  parties  to  re- 
deem the  property.^  So  also  is  a  decree,  directing  a  sale 
for  cash,  instead  of  allowing  a  reasonable  credit.^     But  at 

1  Mosely  v.  Garrett,  1  J.  J.  Marsh.  *  Per  Lumpkin,  J.,  Minis  v.  Macon, 
212.     See  Neas's,  &c.  31  Penn.  293.  &c.  3  Kelly,  342. 

2  Hough  V.  Canby,  8  Blackf.  301.  ^  ivyies  v.  Tait,  6  Gratt.  44. 

3  Eskridge  v.  McClure,  2  Yerg.  84.  «  Alford  v.  Helms,  G  Gratt.  90. 


(?■)  Claim  by  an  equitable  mortgagee  against  the  mortgagor,  asking  for  a 
sale,  and  that  other  mortgagees  might  be  summoned  before  liie  Master,  or 
a  decree  made  to  ascertain  what  mortgages  there  were  and  their  priorities. 
Order  refused.     Burgess  v.  Sturgis,  8  Eug.  Law  &  Eq.  270. 

VOL.  I.  60 


710  THE   LAW    OF   MORTGAGES.  [CH.  XXIIl. 

any  time  before  a  sale  the  defendant  may  redeem  the  land, 
although  the  decree  does  not  expressly  so  provide.^ 

60.  In  a  suit  to  enforce  his  lien,  the  vendor  of  land  will  be 
compelled  to  do  equity.  Hence,  if  the  vendee  bids  off  the 
land  upon  an  execution  sale  against  the  vendor,  founded  upon 
a  judgment  recovered  after  the  purchase,  he  shall  be  allowed 
the  amount  paid  to  the  officer.^  But  where  A.  bought  at  an 
administrator's  sale  land  subject  to  the  lien  of  B.  for  the  pur- 
chase-money, and  B.  afterwards  brought  a  suit  against  A.  to 
enforce  the  lien,  when  a  sale  was  decreed,  and  the  purchase-  '• 
money  ordered  to  be  applied  to  the  lien ;  held,  A.  had  no 
right  to  receive  first  what  he  had  paid  to  the  administrator.^ 

61.  The  principle  of  equitable  apportionment  of  the  debt, 
among  different  parcels  of  land  subject  to  one  incumbrance, 
is  held  applicable  to  the  lien  of  a  vendor.  It  is  said,  "  There 
is  no  difference  in  principle  between  the  lien  of  a  vendor, 
under  an  agreement  for  the  sale  of  land,  part  of  which  is 
subsequently  sold  by  the  vendee,  and  that  of  a  mortgage  to 
secure  the  purchase-money  after  a  conveyance  by  the  mort- 
gagor under  similar  circumstances.  In  either  case,  equity 
would  require  that  the  lien  should  be  satisfied  by  sale  of  the 
different  parcels  in  the  inverse  order  of  their  alienation."  * 
(See  §§  23,  26.) 

62.  A  sale  made  for  satisfaction  of  a  vendor's  lien,  like  a 
sale  under  a  mortgage,  vests  an  absolute  title  in  the  ven- 
dee.^ 

63.  If  a  vendor,  having  a  lien  for  purchase-money,  part  of 
which  only  is  due,  enforce  it  for  that  part,  the  lien  is  ex- 
hausted, and  cannot  be  enforced  as  to  the  balance.^  So, 
where  part-payment  is  made,  and  a  note  given  for  the  bal- 
ance, which  is  not  paid,  the  vendor  may  pay  or  tender  back 
the  money,  and  rescind  the  contract ;  but  where  he  has 
elected  to  affirm  the  contract,  has  sued  on  the  note,  and  has 

1  Winter  v.  Rose,  32  Ala.  447.  wall,  2  Comst.  291,  292 ;  Wright  v. 

^  Forenian    v.   Hardwick,    10   Ala.  Atkinson,  3  Sneed,  585. 

316.  5  Amory  v.  Reilly,  9  Ind.  490;   7 

8  Delassus  v.  Poston,  21  Mis.  543.  Barr,  81. 

*  Per  Gardiner,  J.,  Crafts  v.  Aspin-  ^  Codwise  v.  Taylor,  4  Sneed,  346. 


CH.  XXIII.]      EQUITABLE   MORTGAGES.— vendor's   LIEN.  711 

procured  a  decree  and   sale    of  the  land,  he  caiinot  again 
subject  it  to  sale.^ 

64.  The  lien  of  unpaid  purchase-money,  under  an  Orphans' 
Court  sale,  the  interest  of  which  is  payable  to  the  widow  for 
her  life,  remainder  to  the  heirs,  is  not  discharged  by  a  shcrifPs 
sale  under  a  judgment  against  the  purchaser  ;  hence  all  prior 
liens  are  unaffected ;  but  the  arrearages  of  interest  and  of 
prior  annuities  are  discharged,  and  the  proceeds  of  the  sale 
should  therefore  be  applied  thereto.^ 

65.  Where  land  is  sold  under  articles,  and  the  vendor 
under  a  judgment  for  the  purchase-money  sells  the  land  ;  he 
will  be  entitled  to  payment  in  preference  to  liens,  prior  to  his 
judgment,  on  the  title  of  the  vendee.^ 

66.  Where  vendors  and  vendee  joined  in  a  mortgage  on  a 
part  of  the  lands,  judgment  having  been  obtained  against  the 
vendee  on  the  day  preceding,  it  was  held  :  1.  That  the  ven- 
dors waived  their  lien  on  the  mortgaged  portion  to  the  amount 
of  the  mortgage  claim,  but  that  the  lien  remained  entire  on 
the  remaining  lands,  for  the  whole  of  the  unpaid  purchase- 
money.     2.   That  a  vendor's  lien   can  be  assigned  only  by 
express  words.     3.  Equity  will  direct  the  judgment  creditor 
to  look  first  to  the  lands  outside  the  mortgage.     4.  If  these 
are  not  sufficient  to  satisfy  the  lien  and  the  judgment,  the 
former  shall  be  abated  by  the  amount  of  the  mortgage,  or  as 
much  thereof  as  will  satisfy  the  judgment.     5.  If  the  pro- 
ceeds of  the  sale  of  the  mortgaged  land  exceed  the  mortgage 
debt,  the  surplus  shall  be  added  to  the  outside  lands,  from 
which  fund  shall  be  paid  :  (1.)   The  vendor's  lien,  deducting 
the  amount  of  the  mortgage;  (2.)   The  judgment;  (3.)  The 
surplus  due  the  vendor.     If,  in  this  order,  any  part  of  the 
judgment  shall  be  unsatisfied,  the  deficiency  shall  be  supplied 
out  of  the  proceeds  of  the  mortgaged  land.     6.  It  must  be 
ascertained    whether   the    outside   lands    are    not    sufficient 
to  satisfy  the  vendors  and  the  judgment,  before  the  mort- 
gagee shall  have  his  claim  reduced  or  abated.     7.  If,  in  this 

1  Amory  v.  Reilly,  9  Ind.  490.  ^  Herbacli  r.  Riley,  7  Barr,  81. 

2  Lauman's  Appeal,  8  Barr,  473. 


712  THE   LAW   OF   MORTGAGES.  [CH.  XXIII. 

mode  of  settlement,  any  difficulties  shall  arise,  the  Court 
may,  if  the  equity  of  the  case  justifies  it,  order  the  judgment 
to  be  paid  from  the  proceeds  of  the  mortgaged  premises,  and 
to  be  assigned  to  the  mortgagee.  Or  they  may  order  such 
assignment,  should  the  mortgagee  choose  to  pay  the  claim 
from  his  own  funds.^  (s) 

1  Watson  V.  Bane,  7  Md.  117. 


(s)  A  lien  has  been  sometimes  upheld,  ■which  is  the  precise  converse  of, 
but  treated  as  analogous  to,  that  described  in  the  foregoing  chapter ;  to  wit, 
the  lien  of  a  purchaser,  who  has  paid  the  purchase-money  punctually,  prema- 
turely, or  by  surprise,  before  receiving  an  actual  conveyance.  Payne  r.  At- 
terbury,  Harring.  Ch.  414.  See  Coote,  265  ;  Lowell  v.  Mutual,  &c.,  8  Cush. 
132;  ^tna,  &c.  v.  Tyler,  16  Wend.  385. 

Upon  this  subject  Judge  Story  remarks  as  follows :  — "  In  Burgess  v. 
Wheate,  (1  W.  Bl.  150,  1  Ed.  211,)  Sir  Thomas  Clarke,  M.  R.,  said, 
'  Where  a  conveyance  is  made  prematurely,  before  money  paid,  the  money 
is  considered  as  a  lien  on  that  estate  in  the  hands  of  the  vendee.  So 
where  money  was  paid  prematurely,  the  money  would  be  considered  as 
a  lien  on  the  estate  of  the  vendor  for  the  personal  representatives  of  the 
purchaser ;  which  would  leave  things  in  statu  quo.'  Mr.  Sugden  seems 
to  have  doubted  whether  this  lien  exists  in  favor  of  the  vendee,  who 
has  paid  the  purchase-money.  For,  alluding,  as  it  should  seem,  to  such  a 
case,  he  says,  '  Where  a  lien  is  raised  for  purchase-money  under  the  usual 
equity  in  favor  of  a  vendor,  it  is  for  a  debt  really  due  to  him,  and  equity 
merely  provides  a  security  for  it.  But  in  the  case  under  consideration, 
equity  must  not  simply  give  a  security  for  an  existing  debt ;  it  must  first 
raise  a  debt  against  the  express  agreement  of  the  parties.  The  purchase- 
money  was  a  debt  due  to  the  vendor,  which,  upon  principle,  it  would  be 
difficult  to  make  him  repay.  What  power  has  a  court  of  equity  to  rescind 
a  contract  like  this  ?  The  question  might  perhaps  arise,  if  the  vendor  was 
seeking  relief  in  equity.  But  in  this  case  he  must  be  a  defendant.  If  it 
should  be  admitted  that  the  money  cannot  be  recovered,  then,  of  course,  he 
must  retain  the  estate  also,  until  some  person  appears  who  is  by  law  entitled 
to  require  a  conveyance  of  it.'  (Sugden  on  Vendors,  p.  258,  7t,h  ed.)  Lord 
Eldon  cited  the  same  position  of  Sir  Thomas  Clarke,  in  his  very  words, 
without  objection  or  observation,  in  Macreth  v.  Symmons,  15  Ves.  345.  And 
afterwards,  in  the  same  case,  p.  353,  he  used  language  importing  an  ap- 
proval of  it.  '  This,'  said  he,  '  comes  very  near  the  doctrine  of  Sir  Thomas 
Clarke,  which  is  very  sensible,  that  where  the  conveyance  or  the  payment 


CH.  XXIII.]       EQUITABLE   MORTGAGES.  — vendor's   LIEN.  713 

has  been  made  by  surprise,  (meaning,  it  is  supposed,  prematureh,,  in  tl.e 
sense  of  Sir  T.  Clarke,)  there  shall  be  a  lien.'  The  ground  asserted  by  Mr. 
bugden  for  his  doubt  docs  not  seem  sufficient  to  sustain  it.  lie  assumes 
that  there  is  no  debt  between  the  parties,  which  is  the  very  n.atk-r  in  con- 
troversy, for  in  the  view  of  a  court  of  ccjuity,  the  payment' of  tl.e  punhase- 
money  may  well  be  deemed  a  loan  upon  the  security  of  the  land,  until  it 
has  been  conveyed  to  the  vendee.  At  least,  there  is  quite  as  much  reason 
to  presume  it,  as  there  is  reason  to  presume  the  land,  when  conveyed,  to  be 
still  a  security  for  the  purchase-money  due  to  the  vendor.  In  the  latter 
case,  though  there  is  a  debt  due  by  the  vendee,  it  does  not  follow  that  it  is 
a  debt  due  by  the  land.  In  the  former,  if  the  estate  cannot  be  conveyed 
and  is  not  conveyed,  the  money  is  really  a  debt  due  to  the  vendee.  At 
all  events,  in  equity  it  is  not  very  clear  what  principle  is  impugned  by 
deeming  the  money  a  Hen  upon  the  ground  of  presumed  intention."  2  Story's 
Eq.  §  1217,  n.  4.  See  Oxenham  v.  Esdaile,  3  Y.  &  Jer.  264  ;  Ludlow  v. 
Grayall,  11  Price,  58;  Finch  v.  Winchelsea,  1  P.  Wms.  282;  Small  v.  Att- 
wood,  1  Younge,  507. 

In  New  York,  after  a  contract  to  sell  land,  the  vendor  is  a  mere  trustee, 
and  has  only  a  lien.  His  interest  is  personal  estate.  Especially  if  posses- 
sion has  been  delivered.     Smith  v.  Gage,  Law  Reg.  May,  1863,  p.  438. 

In  Indiana,  a  vendee  of  real  estate  has  a  lien  thereon  for  the  money  paid, 
if  the  vendor  refuse  to  convey;  and  the  lien  continues  against  a  subsequent 
purchaser  with  notice.     Shirley  v.  Shirley,  7  Blackf.  452. 

It  is  held  in  Kentucky,  that  a  vendee  of  land  under  a  parol  contract, 
though  he  cannot  have  specific  performance,  may  enforce  a  lien  on  the  land 
for  the  purchase-money  and  his  improvements.  Brown  v.  East,  5  Monr. 
405. 

In  Alabama,  a  purchaser  of  land,  who  has  paid  part  of  the  purchase- 
money,  but  has  only  a  bond  for  title  when  the  purchase-money  is  paid,  has 
an  interest  which  he  may  convey  absolutely  or  in  mortgage,  subject,  how- 
ever, to  the  first  vendor's  lien.  '  Fenno  v.  Sayre,  3  Ala.  458. 

In  the  same  State,  where  one,  having  only  a  bond  for  a  title,  transfers  it 
to  a  surety  for  the  purchase-money ;  this  is  an  equitable  mortgage,  which 
may  be  foreclosed.     Hayes  v.  Hall,  4  Port.  374. 

In  a  late  English  case.  A.,  the  owner  and  keeper  of  a  hotel,  agreed  with 
B.,  his  son-in-law,  to  sell  it  to  him,  and  assist  in  conducting  it,  receiving  half 
the  profits.  The  wife  of  B.  afterwards  assisted  in  conducting  the  hotel.  B., 
not  having  the  funds  required  for  the  business,  wrote  to  A.,  "  you  must  mort- 
gage or  sell  the  premises."  He  afterwards  applied  to  A.  for  a  mortgage,  to 
secure  sums  claimed  by  him,  and  brought  an  action,  in  part  for  the  services 
of  his  wife.  A.  having  become  bankrupt,  B.  files  a  bill  against  the  assignees, 
praying  for  specific  performance  of  the  agreement,  or  that  he  might  be  de- 
clared to  have  a  lien  for  his  advances.  Held,  although  he  might  have  had 
a  lien  if  the  contract  had  failed  through  the  fault  of  A.,  such  lien  was 
60* 


714  THE  LAW  OF  MORTGAGES.         [CH.  XXIII. 

defeated  by  his  own  abandonment  of  the  purchase.  Dinn  v.  Grant,  17  Eng. 
Law  &  Eq.  526. 

An  advance  of  money  to  a  mortgagee,  under  an  agreement  that  the  mort- 
gage shall  be  assigned  to  the  lender,  substitutes  the  latter,  in  equity,  in  place 
of  the  former.     Rockwell  v.  Hobby,  2  Sandf.  Ch.  9. 

A  son  advanced  money  to  pay  off  a  mortgage  against  his  mother ;  no 
assignment  was  executed,  and  the  securities  were  lost ;  but  the  title-deeds 
were  found  in  his  hands.  Held,  he  had  an  equitable  lien.  Rockwell  v. 
Hobby,  2  Sandf.  Ch.  9. 

A  married  woman,  having  conveyed  land  by  a  defective  conveyance,  rep- 
resented to  a  purchaser  from  her  vendee  that  the  title  was  good,  and  thereby 
induced  him  to  pay  out  money.  After  her  death,  her  heirs  sought  to  avoid 
the  conveyance,  and  eject  such  purchaser.  Held,  in  equity,  they  were 
bound  to  reimburse  the  sum  paid  by  him,  and,  being  non-residents,  that  he 
had  a  lien  upon  the  land  therefor.  Blackburn  v.  Pennington,  8  B.  Mon. 
217. 

As  to  an  equitable  title  in  government  lands,  growing  out  of  a  payment  of 
the  purchase-money,  see  Regan  v.  Walker,  2  Chand.  (Wise.)  133.  As  to 
equitable  mortgages,  in  general,  see  Northrup  v.  Cross,  Law  Rep.  August, 
1853,  p.  232 ;  Waldron  v.  Sloper,  19  Eng.  Law  &  Eq.  Ill  ;  James  v.  Rice, 
23  Ibid.  567  ;  Storer  v.  Bounds,  1  Ohio,  St.  107  ;  Stockett  v.  Taylor,  3  Md. 
Ch.  Dec.  537. 


CH.  XXIV.]  REGISTRATION.  715 


CHAPTER   XXIV. 

REGISTRATION    OF   MORTGAGES. 


General  requisition  of  registration 
in  tlie  United  States ;  not  necessary 
between  the  parties,  &e.  ;  operation  of  an 
unrecorded  mortgage,  as  against  other 
incumbrances  ;    registration,   how   far 


notice ;  not  necessary,  as  against  par- 
ties liaving  notice;  what  shall  consti- 
tute such  notice ;  form  of  registration, 
&c. 


1.  In  the  foregoing  chapters,  (a)  incidental  reference  has 
been  often  made  to  the  registration  or  recording  of  mortgages, 
as  an  indispensable  requisite  to  their  perfect  validity  and 
effect ;  in  conformity  with  the  prevailing  American  system 
of  notoriety  in  the  title  to  real  property.  In  all  the  States, 
express  provision  is  made  for  the  recording  of  deeds ;  apply- 
ing, in  the  absence  of  express  provisions  to  the  contrary,  as 
well  to  mortgages  as  to  absolute  conveyances.  The  plan  of 
the  present  work  does  not  include  a  statement  of  the  minute 
statutory  regulations  upon  this  general  subject,  but  only  of 
such  as  relate  specially  to  mortgages  ;  which  are  compara- 
tively very  few. 

2.  Where  statutory  provisions,  as  to  the  recording  of  deeds 
generally,  differ  from  those  relating  specially  to  mortgages, 
the  latter  shall  prevail.^ 

3.  An  unrecorded  mortgage  is  held  void,  as  to  a  subse- 
quent mortgagee  without  notice,  although  his  deed  is  also 
unrecorded.^ 

4.  Mortgages  of  equitable  interests  are  held  to  be  within 
the  registry  laws.^ 

1  Weed  V.  Lyon,  Harring.  Ch.  363.  '  General  Ins   Co.  u.  United  States 

2  Coster  r.  Bank  of  Georgia,  24  Ala.  Ins.  Co.  10  Md.  617.  (But  sec  § 
37.  60.) 


(a)  See  more  particularly,  pp.  44  and  sequ. 


716  THE   LAAV    OF   MORTGAGES.  [CH.   XXIV. 

5.  An  act  providing  for  registration  is  a  mere  statute  of 
notice,  and  registry  is  not  evidence  of  execution ;  ^  nor  does 
the  fact,  that  a  mortgage  is  found  upon  the  record,  raise  a 
presumption  of  its  delivery  and  acceptance,  against  the  pos- 
itive denial  of  the  mortgagee  and  those  claiming  under  him, 
that  he  ever  received  such  mortgage,  or  had  any  knowledge 

of  it;-^ 

6.  A  mortgage,  not  acknowledged,  or  proved,  and  recorded, 
as  required  by  statute,  is  not  valid  as  against  subsequent 
purchasers.^  But,  in  general,  a  mortgage,  like  an  absolute 
conveyance,  is  valid,  between  the  parties,  without  registration.* 
So  scire  facias  lies  upon  a  mortgage,  though  improperly 
recorded.^  And  a  mortgage  defectively  registered  is  a  good 
equitable  mortgage,  and  held  to  have  precedence  of  subse- 
quent judgments.^  So  an  unrecorded  mortgage  has  been 
held  to  take  precedence  of  a  subsequent  judgment,'^  or  a 
subsequent  assignment  for  creditors.^  Especially  if  the  judg- 
ment is  not  docketed.^  So,  as  against  one  afterwards  taking 
the  property  as  security  for  an  existing  debt.^*^  Though,  if 
the  land  should  be  sold  by  the  sherijfF  under  the  judgment, 
prior  to  the  regisfa'y  of  the  mortgage,  a  bond  fide  purchaser 
might  be  protected  against  the  mortgage.^^ 

7.  Several  mortgages  may  be  concurrent,  instead  of  suc- 
cessive, and  the  rights  of  the  respective  mortgagees  may 
materially  depend  upon  their  registration.  Thus,  where  three 
mortgages  were  successively  made,  at  the  same  time,  of  the 
same  property,  by  the  same  person,  and  handed  in  order  to 
the  register ;  held,  the  first  had  priority .^^ 

1  Munro  v.  Merchant,  26  Barb.  383.  ■?  Schmidt  v.  Hayt,  1  Edw.  Ch.  652. 

2  Foley  V.  Howard,  8  Clarke,  56.  ^  Wyckoff  v.  Kemsen,  11  Paige, 
See  Brown  v.  Kirkman,  1  Ohio  St.  5G4  ;  cuntm,  Bank,  &c.  v.  Herbert,  8 
116.  Cranch,  36.     See  §§  14,  22. 

3  Jacoway  v.  Gault,  20  Ark.  190.  »  Tuthill  v.  Dubois,  4  John.  216. 

*  See  Salmon  v.  Clagett,   3  Bland,  i°  Manhattan,    &c.   v.    Evertson,    6 

126 ;  Andrews  v.  Burns,  11  Ala.  691  ;  Paige,  457. 

Hartl.  Dig.  (Tex.)  835.  "  Tuthill  v.  Dubois,  4  John.  216; 

5  Bank,  &c.  v.  Herbert,  8  Cranch,  36.  contra,  Ash  v.  Ash,  1  Bay,  304  ;  Ashe 

'''  Bank,   &c.   v.   Carpenter,  7  Ham.  v.  Livingston,  2  Bay,  84 ;  Penman  v. 

(1st  part)  21 ;  Fosdick  v.  Barr,  3  Ohio,  Hart,  251. 

(N.  S.)  471  :  Leggett  v.  Bullock,  1  Bus-  i-  Naylor  v.  Throckmorton,  7  Leigh, 

bee,  Law,  (N.  C.)  283  ;  Howard,  &c.  v.  98. 

M'Intyre,  3  Allen,  671. 


CH.  XXIV.]  REGISTRATION.  7^7 

a  A  person  holding  the  legal  title  to  land,  in  trast  for 
his  father,  sold  the  land,  at  the  request  of  the  father,  and 
took  two  mortgages  upon  the  land  for  the  purehase-tnoney, 
one  for  the  portion  of  the  purchase-money  belonging  to  the 
father,  and  the  other  as  a  compensation  to  an  agent  for 
effecting  the  sale.  Both  mortgages  were  executed  to  the  son 
at  the  same  time,  but  with  the  understanding  that  the  mort- 
gage for  the  benefit  of  the  father  was  to  take  precedcne.", 
and  it  was  recorded  fifteen  minutes  earlier  than  the  othcr^ 
for  the  benefit  of  the  agent ;  but  the  latter  was  assigned  to 
the  agent,  before  the  assignment  of  the  former  to  the  father. 
Held,  that  the  father's  mortgage  was  entitled  to  priority, 
there  having  been  no  intervening  bond  fide  purchase  from  the 
agent.i 

9.  Separate  mortgages  were  made  on  the  same  day  to  two 
mortgagees.  One  of  them  was  entered  for  record  a  short 
time  before  the  other,  but  on  the  same  day.  The  first  mort- 
gagee, being  in  possession  under  his  deed,  acknowledged  in 
writing  that  the  mortgages  were  concurrent,  and  that  his 
was  first  recorded  by  mistake.  He  afterwards  conveyed  to 
a  third  person.  Held,  such  writing,  though  not  recorded, 
was  admissible  evidence  against  such  third  person.^ 

10.  A  trustee,  having  two  sums  of  money,  belonging  to 
different  cestuis,  loaned  both  to  one  person  at  the  same  time, 
and  took  separate  mortgages  upon  the  same  premises  as 
security,  not  intending  to  give  priority  to  either  over  the  other ; 
but  one  was  received  by  the  clerk  for  registry  shortly  before 
the  other.  The  premises  being  sold,  and  the  proceeds  insuf- 
ficient to  pay  both  debts ;  held,  the  two  should  be  paid  rat- 
ably.^ 

11.  Contract  to  sell  certain  land  for  $200.  The  vendee 
transferred  his  interest  for  $100,  of  which  $10  was  paid. 
Thereupon  the  vendor,  at  the  request  of  the  vendee,  conveyed 
the  land  to  the  assignee,  who  mortgaged  to  the  vendor  for 
$200,  and  to  the  vendee  for  $90.     The  latter  mortgage  was 

1  Douglass  V.  Peele,  1  Clark,  563.  ^  Rhoades  v.  Canficld,  8  Paige,  646. 

^  Beers  v.  Hawley,  2  Conn.  467. 


718  THE  LAW   OF  MORTGAGES.         [CH.  XXIV. 

recorded  two  hours  earlier  than  the  former,  and  was  assigned 
by  the  mortgagee  for  valuable  consideration,  without  notice. 
On  a  bill  by  the  assignee  of  the  mortgage  to  the  vendor  to 
foreclose  that  mortgage,  it  was  held,  that  the  vendee's  as- 
signee should  be  protected  as  a  bond  fide  purchaser,  and  his 
mortgage,  being  first  recorded,  should  have  priority  over  the 
vendor's.^ 

12.  In  genera],  a  subsequent  mortgage,  duly  recorded,  to  a 
party  having  no  notice  of  the  former  one,  has  precedence  of 
such  prior  mortgage.- 

13.  The  lien  of  a  second  mortgagee,  who  has  had  his  deed 
first  recorded,  will  be  preferred,  unless  there  is  proof  of  actual 
knowledge  on  his  part  of  the  prior  iinregistered  conveyance, 
or  that  he  knew  circumstances  sufficient  to  put  him  upon  in- 
quiry, and  unless  it  appear  that  to  allow  the  preference  would 
be  a  fraud  on  the  holder  of  the  earlier  deed.'^ 

14.  It  is  held  that  the  holder  of  an  unrecorded  mortgage 
cannot,  by  giving  notice  of  its  existence  at  a  sheriff's  sale 
upon  a  judgment,  bind  the  mortgaged  estate  in  the  hands  of 
a  purchaser  at  such  sale,  where  the  judgment  creditor  had 
no  notice  of  the  mortgage  when  his  judgment  was  entered; 
nor,  perhaps,  where  the  judgment  creditor  had  such  notice.* 

15.  The  record  of  a  mortgage  of  land,  which  on  the  rec- 
ords appears  to  belong  to  the  mortgagee,  is  no  notice  of  a 
prior  conveyance  of  such  land  from  mortgagee  to  mort- 
gagor.^ 

16.  Registration  of  a  subsequent  mortgage  is  not  sufficient 
notice  to  a  prior  mortgagee.     Actual  notice  is  necessary.*^ 

17.  A.  mortgaged  to  B.,  and  afterwards  released  his  equity 
of  redemption  by  deed  duly  recorded,  and  took  a  bond  for 

1  Corning  v.  Murray,  3  Barb.  652.  ^  pierce  v.  Taylor,  10  Shepl.  246. 

-  Pomet  V.    Scranton,  Walk.   406 ;  '^  Truscott   v.  King,  6  Barb.    346 ; 

Clabaugh  v.  Byerly,  7  Gill,  354.     See  King  v.  M'Viekar,  3  Sandf.  Ch.  192. 

Hulings  V.  Guthrie,  4  Barr,  123 ;  Fra-  See  the  remarks  of  Lord   Redesdale, 

zer  V.  Jones,  5  Hare,  475;  Wyatt  v.  in  Bushell   v.  Bushell,  1  Sch.  &  Lef. 

Stewart,  34  Ala.  716.  108,  and  Latouche  v.  Dunsany,  Ibid. 

^  General,  &c.  v.  United  States,  &c.  157.      See  also    Underwood  v.   Cour- 

10  Md.  517.  town,  2  Ibid.  64. 

*  Uhler  V.  Hutchinson,  28  Penn.  110. 
See  §  6. 


CH.  XXIV.]  REGISTRATION.  719 

reconveyance,  which  was  not  recorded  ;  B.  assigned  the  innrt- 
gage  to  C,  but  the  assignment  was  not  recorded,  and  was 
unknown  to  D.,  who  purchased  of  B.,  after  the  assignment, 
but  in  good  faith,  and  for  valuable  consideration.  Held,  D. 
took  the  land  discharged  of  the  mortgage.^ 

18.  In  general,  as  has  been  stated,  the  recording  of  a  mort- 
gage is  notice  both  of  the  debt  and  the  lien  to  all  jjarties ; 
though,  without  legal  acknowledgment  or  proof,  it  is  a  nul- 
lity.2  The  record  of  an  unsatisjfied  mortgage  is  sufficient  to 
put  a  third  person  upon  inquiry  ;  and  whatever  puts  a  person 
upon  inquiry  is,  in  equity,  notice  to  him  of  all  the  facts  which 
such  inquiry  would  have  disclosed.^ 

19.  Deed  with  a  schedule  annexed,  describing  the  prop- 
erty, as  "land,  the  title  to  which  is  in,  &c.,  given  as  collat- 
eral security,  to  pay  certain  notes."  The  mortgage  was  not 
recorded.  Held,  the  mortgage  should  have  priority  of  the 
deed.* 

20.  If  a  registered  mortgage  mentions  the  bond  intended 
to  be  secured  by  it,  though  not  its  contents  ;  this  is  sufficient 
notice  to  subsequent  purchasers.^ 

21.  Registration  is  notice  to  a  subsequent  purchaser  from 
the  mortgagor,  though  the  mortgagee  neglects  for  ten  years 
to  claim  under  the  mortgage,  and  the  mortgagor  has  in  the 
mean  time  become  insolvent.*^ 

22.  It  is  held,  that  a  subsequent  mortgagee,  having  notice 
of  the  prior  mortgage,  though  not  recorded,  takes  subject 
thereto  ;  though  he  forecloses  his  own  mortgage  and  liimself 
purchases  the  land  at  the  sale.' 

23.  The  general  principle  upon  this  subject  is,  that  regis- 

1  Mills  V.  Comstock,  5  John.  Cli.  469;  Solms  v.  McCulioch,  5Barr,  473  ; 
21^               '  Allen  v.  Montgomery,  &c.  11  Ala.  437 ; 

2  Work   V.   Harper,   24    Miss.   517.  Copcland  f.  Copelaad,  l!8  Maine.  025 ; 
See  Peters  v.  Goodrich,  3  Conn.  146 ;  Woodworth    v.   Guzman,  1    Cal.  203; 
Quinebauo-,  &c.   v.  French,  17  Conn.  Bell  y.  Thomas,  2  Clarke,  (Iowa,)  3»4. 
129  •  Mix°i-    Hotchkiss,  14  Conn.  33  ;  ^  Bolles  v.  Chauncey,  8  Conn.  389. 
Miller  v  Helm,  2  Sm.  &  M.  687  ;  Cope-  *  Dunham  i-.  Dey,  15  Johns.  556. 
land    V.    Copeland,    28    Maine,    525  ;  '  Pike  v.  Collins,  83  Maine,  38. 
Knickerbacker  v.  Boutwell,  2  Sandf.  «  Dick  y.  Balch,  8  Pet  30 

Ch.  319  ;  Dean  I'.  De  Legardi,  24  Miss.        '  Harris   v.  Norton,  10  Barb.  2o4. 
424 ;  Sparks  v.  State  Bank,  7  Blackf. 


720  THE   LAW   OF   MORTGAGES.  [CH.  XXIV. 

tration  is  a  substitute  for  livery  of  seisin ;  and,  if  the  notori- 
ety intended  to  be  effected  by  both  of  these  ceremonies  is 
otherwise  attained,  registration  is  unnecessary.  Upon  this 
ground,  not  only  is  an  unrecorded  mortgage  goo^  against 
the  grantor  and  his  heirs,  but  also  against  a  second  purchaser, 
mortgagee  or  attaching  or  levying  creditor,  who  has  actual 
or  presumptive  notice  of  the  first  mortgage  ;  such  party  him- 
self being  deemed  guilty  of  a  fraudulent  act.  The  same 
rule  applies  to  a  purchaser  with  notice  from  such  grantee. 
But  a  second  purchaser,  &c.,  with  notice,  will  acquire  a  good 
title  against  the  first  purchaser,  after  waiting  a  reasonable 
time  for  the  mortgagee  to  record  his  deed  ;  because  he  may 
fairly  presume  that  in  some  way  the  estate  has  been  restored 
to  the  grantor.  Open,  peaceable,  and  exclusive  possession 
by  a  grantee  is  primd  facie,  but  not  conclusive,  evidence  of 
notice  to  the  subsequent  purchaser.  In  case  of  a  deed  and 
defeasance  back,  notice,  in  order  to  have  any  effect,  must  be 
notice  of  such  facts  as  constitute  the  transaction  a  mortgage.^ 
It  is  said,  the  notice  which  will  bind  a  purchaser,  &c.,  must 
be  either  positive  or  implied.  It  is  not  sufficient  that  the 
party  is  thereby  put  upon  inquiry,  or  that  there  is  a  mere 
suspicion  of  notice.^  And  it  is  sometimes  held,  that  construc- 
tive notice  of  a  valid  and  properly  registered  mortgage  is  not 
conclusive  evidence  of  mala  fides  in  a  subsequent  mortgagee  ; 
though  it  is  otherwise  with  actual  notice.^ 

24.  An  unregistered  mortgage  is  valid  in  the  State  where 
the  property  is  situated,  against  a  purchaser  with  notice, 
though  executed  in  another  State.*  But  the  fact  of  execu- 
tion in  another  State  does  not  dispense  with  the  general 
necessity  of  registration.^ 

25.  A.  conveyed  to  B.,  taking  a  mortgage  for  the  price, 
which  was  not  recorded  within  sixty  days.     B.  then  con- 

1  2  HiU.  on  R.  P.  430-432.  Clark,  25  Verm.  397  ;  Doyle  v.  Ste- 

-  Fort  V.  Burch,  6  Barb.  60 ;  Flem-     vens,  4  Mich.  87. 
ing  V.  Burgin,  2  Ired.  Ch.  584;  Gill  v.        3  Paine  v.  Mason,  7  Ohio,  (N.  S.) 
M'Attee,  2  Md.  Ch.  255.     See  Ohio,     198. 

&c.  V.  Ross,  2    Md.   Ch.  25 ;  Day  v.        *  Dearing  v.  Watkins,  16  Ala.  20. 

^  Dearing  v.  Lightfoot,  Ibid.  28. 


CH.    :SX1\.]  REGISTRATION.  721 

veyed  to  C,  taking  a  mortgage  for  tlic  price,  which  he  fore- 
closed  by  a  sale  of  the  premises,  being  himself  the  pu;ehaser, 
through  an  agent.  B.  afterwards  quitclaimed  all  his  title  to' 
D.,  who  had  no  actual  notice  of  A.'s  mortgage.  Ik-Id,  D. 
took  subject  to  A.'s  mortgage.^ 

26.  If  land  is  conveyed  and  immediately  mortgaged  baek 
for  the  price,  and  the  mortgagee  remains  in  possession,  but 
neither  deed  nor  mortgage  is  recorded  ;  such  mortgage  shall 
have  priority  of  a  subsequent  mortgage,  duly  recorded.- 

27.  Where  one  who  has  contracted  to  sell  land  gives  a 
mortgage  of  it,  the  tenant  of  the  purchaser  being  at  the  time 
in  possession  ;  this  is  constructive  notice  to  the  mortgagee 
of  the  sale,  and  he  is  bound  thereby .^ 

28.  Pendency  of  a  foreclosure  suit,  after  service,  is  suffi- 
cient notice  of  the  mortgage.* 

29.  If  a  mortgage,  duly  recorded,  recite  that  the  premises 
are  the  same  this  day  conveyed  by  the  mortgagee  to  the 
mortgagor,  and  now  reconveyed  to  secure  the  purchase- 
money  ;  this  is  sufficient  notice  of  the  deed  to  all  claiming 
under  the  mortgagee.^ 

30.  To  charge  a  party  with  notice  of  an  unrecorded  mort- 
gage, the  notice  need  not  be  of  the  date  or  amount,  but  only 
of  an  existing  lien  of  a  certain  description  by  a  certain 
party.^ 

31.  Where  a  recorded  mortgage  is  discharged  by  one  not 
the  mortgagee,  a  subsequent  incumbrancer  is  bound  to  in- 
quire into  his  authority,  and  chargeable  with  such  facts  as 
he  might  learn  by  proper  inquiry.^ 

32.  Conveyance  for  a  certain  sum,  with  an  agreement 
between  the  parties  and  a  third  person  that  a  part  of  it 
should  be  paid  down,  he  furnishing  such  part  to  the  grantee, 
and  that,  as  security  therefore,  he  should  receive  a  first  mort- 

1  Smith  V.  MobUe,  &c.  21  Ala.  125.  '  Hoole  y.  Attorney-General,  22  Ala. 
See  §  22  1^0. 

2  McKecknie  v.  Hoskins,  10  Shepl.  ^  Center  i-.  P.  &  M.  Bank,  22  Ala. 
230  743. 

3  Bank,  &c.  V.  Flagg,  3  Barb.  Ch.        «  Barr  v.  Kinard^  3  Strobh.  73. 
316  ;  Braman  v.  Wilkinson,  3  Barb.        "  Swartliout  v.  Curtis,  1-  Seld.  801. 
151. 

VOL.    I.  61 


722  THE   LAW    OF   MORTGAGES.  [CH.  XXIV. 

gage  from  the  grantee,  to  be  recorded  prior  to  the  mortgage 
to  the  gi-antor  for  the  balance  of  the  purchase-money  ;  which 
was  accordingly  done.  The  grantor  assigned  his  mortgage, 
and  at  the.  time  of  assignment  a  certificate  of  the  county 
clerk  was  shown  to  the  assignee,  stating  that  the  mortgage 
assigned  was  the  first  and  only  mortgage  on  cecord.  Held, 
the  mortgage  given  to  the  party  who  advanced  the  money 
should  have  priority.^ 

33.  A  first  mortgage  was  not  recorded,  but  a  second  mort- 
gage of  the  same  property  was  recorded,  the  mortgagee 
having  notice  of  the  former  incumbrance.  The  second  mort- 
gagee assigned  his  mortgage  to  one  having  no  notice  of  the 
first,  but  the  assignment  was  not  recorded.  The  assignee 
foreclosed,  not  making  the  holder  of  the  first  mortgage  a 
party.  The  purchaser  at  the  Master's  sale  had  notice  of  the 
first  mortgage,  and  recorded  his  deed.  Held,  the  first  mort- 
gage should  have  precedence  of  the  title  of  such  purchaser.^ 

34.  Bill  in  equity  by  the  holder  of  a  subsequent  mortgage 
against  the  holder  of  a  prior  mortgage,  but  subsequently 
recorded.  The  bill  alleged  that  the  plaintiff"  had  no  notice 
of  the  defendant's  mortgage ;  and  the  answer,  that  the  de- 
fendant "  had  always  understood  and  believed "  that  the 
plaintiff"  had  notice.  Upon  a  hearing  on  bill,  answer,  and 
replication,  a  decree  was  rendered  for  the  plaintiff.^ 

35.  If  a  mortgage  is  made  without  consideration,  and 
transferred  to  a  bond  fide  purchaser,  and  the  mortgagors  then 
convey  to  a  bond  fide  purchaser,  without  notice  of  the  mort- 
gage, the  assignee  of  the  mortgage  will  hold.* 

36.  In  Jones  v.  Smith,^  it  was  held  that  the  doctrine  of 
constructive  notice  applies  in  two  cases  :  First,  where  the 
party  has  had  actual  notice  that  the  land  is  in  some  way 
charged  or  incumbered,  and  has  therefore  been  held,  by  an 
implied  knowledge  of  facts  and  instruments,  to  a  knowledge 

1  Lovett  V.  Demarest,  1  Halst.  Ch.        ^  Taylor   v.    Thomas,  1  Halst.  Ch. 
113.  331. 

-  Fort    V.    Burch,    5    Denio,    187,        *  Andrew     Newport's     case,     Cas. 
(Whittlesey,  J.,  dissented.)  Temp.  Holt,  477  ;  Skin.  428. 

5  1  Hare,  43. 


CH.  XXIV.]  IIEGISTRATION.  703 

of  which  he  would  have  been  led  by  an  inquiry  after  such 
charge  or  incunnbrance.  Second,  where  the  party  has  uh- 
stained  from  inquiry,  for  the  very  purpose  of  avoiding  notice. 
In  a  subsequent  case,i  g-ross  neg-lig-ence,  in  reference  to  a 
knowledge  of  the  prior  incumbrance,  has  been  held  to  be 
equivalent  to  fraud.- 

37.  In  Fuller  v.  Bennett,^  after  negotiations  extending 
over  five  years,  an  estate  was  purchased,  and  nearly  two 
years  after  such  purchase  mortgaged  by  the*purchaser.  The 
solicitor  of  the  purchaser  in  making  the  purchase  was  solici- 
tor of  both  parties  in  making  the  mortgage,  and  during  the 
treaty  for  a  purchase  he  had  notice  of  an  incumbrance. 
Held,  such  notice  charged  the  mortgagee.  But  a  client  is 
not  affected  with  notice  of  a  fraud  which  the  solicitor  him- 
self has  practised  with  respect  to  the  title,  unless  the  client 
would  have  had  constructive  notice  of  it  through  the  solici- 
tor, if  practised  by  a  third  person.* 

38.  If  the  parties  employ  one  attorney,  the  mortgagee 
wall  be  charged  by  notice  to  him,  even  though  the  sale  was 
made  under  the  direction  of  the  Court,  and  the  purchase 
made  by  trustees  on  behalf  of  an  infant.^  So,  if  the  mort- 
gagor act  as  the  mortgagee's  attorney,  notice  to  the  former 
will  bind  the  latter,  if  given  in  re  gestd.^  ^ 

39.  A  tenant  for  life,  with  a  power  to  charge  X20,b00  for 
the  portions  of  younger  children,  mortgaged  his  life-estate, 
and  covenanted  with  some  of  the  mortgagees  not  to  execute 
the  power  without  their  consent.  He  afterwards  exercit^ed 
the  power  for  the  benefit  of  his  children,  and  created  a  long 
term  to  secure  the  <£20,000;  and,  upon  the  marriage  of  one 
of  his  daughters,  appointed  <£ 5,000  to  her  for  a  portion.  The 
trustees  and  appointees  had  notice  of  the  mortgage  and  of 
the  covenant.  Held,  the  mortgage  should  have  priority  over 
the  title  of  the  appointees.'^ 

1  West  V.  Reid,  2  Hare,  249.  ^  2  Hare,  394. 

?  See  Whitbread  v.  Jordan,  1  Y.  &  *  Kennedy  v.  Green,  3  M.  &  K.  699. 

Col.  (Exch.)  303  ;  Sugd.  Vend.  1054  ;  ^  Toulrain  v.  Steere,  3  Mer.  210. 

Jones  V.  Smith,  1  Phill.  255  ;  Steed-  "  Dryden  v.  Frost,  3  M.  &  C.  073. 

man  v.  Poole,  6  Hare,  193 ;  Taylor  v.  "^  Hurst  r.   Hurst,   19  Eug.  Law  & 

Baker,  6  Price,  306.  Eq.  374. 


724  THE  LAW  OF  MORTGAGES.        [CH.  XXIV. 

40.  Two  persons,  purchasing  land,  made  a  mortgage  for 
the  price,  which  was  not  recorded.  Afterwards  one  of  them, 
by  a  deed  of  trust,  conveyed  an  undivided  half  for  the  pay- 
ment of  certain  debts ;  under  which  deed  a  sale  was  ordered 
by  the  Court  of  Chancery,  and  made,  and  the  interest  of  the 
grantor  purchased  by  one  not  having  notice  of  the  mortgage. 
Held,  the  mortgage 'might  be  enforced  against  the  residue  of 
the  land,  for  the  amount  due,  and  that  the  other  mortgagor 
must  look  to  the*grantor  for  reimbursement.^ 

41.  A  subsequent  mortgagee  with  notice  cannot  avail  him- 
self of  any  misdescription  in  the  former  mortgage,  which 
would  be  corrected  in  equity  as  between  the  first  mortgagee 
and  the  mortgagor.^ 

42.  If  a  subsequent  mortgagee  relies  upon  want  of  regis- 
tration of  the  first  mortgage,  he  must  deny  notice,  whether 
charged  in  the  bill  of  the  first  mortgagee  or  not.^ 

43.  It  is  competent  to  show  by  the  mortgagor,  that  a  sub- 
sequent mortgagee  had  notice  of  a  prior  unrecorded  mort- 
gage.^ (b) 

44.  It  has  been  held  that  a  mortgage  may  be  recorded 
after  the  mortgagor's  death. ^ 

44  a.  If  a  first  mortgagee  agrees  by  a  sealed  instrument 
witilti  a  second  mortgagee,  that  the  second  mortgage  shall 
have  priority;  this  will  give  it  such  priority,  though  the 
registry  remain  unchanged.^     A  sealed  agreement  for  such 

1  Ohio  Life,  &c.  v.  Ledyard,  8  Ala.  *  Van  Wagenen  v.  Hopper,  4  Halst. 

866.  Cli.  684,  707. 

'^  Woodwortli  V.  Guzman,  1  Cal.  203.  5  Gill  v.  Pinney,  12  Ohio  St.  38. 

3  De  Vendal  v.  Malone,  25  Ala.  272.  «  New  York,  &c.  v.  Peck.  2  Halst. 

-  Ch.  37. 

(6)  The  possession  of  the  mortgagor  will  not  ordinarily  be  regarded  as 
adverse,  without  some  unequivocal  act,  hostile  to  the  mortgagee's  title,  and 
distinctly  brought  to  his  knowledge,  or  unless  the  possession  becomes  a  dis- 
seisin by  the  election  of  the  mortgagee.  In  this  respect  the  assignee  of  the 
equity  of  redemption,  with  notice  of  the  mortgage,  stands  like  the  mort- 
gagor, and  the  registry  of  the  mortgage,  being  in  the  line  of  the  assignee's 
title,  is  constructive  notice  to  him.  Neither  the  mortgagor  nor  his  assignee, 
with  such  constructive  notice,  can  be  re'^arded  as  holding  the  land  under  a 
supposed  legal  title,  within  the  meaning  of  the  law  relating  to  betterments. 
Tripe  v.  Marcy,  39  N.  H.  439. 


CH.  XXIV.]  REGISTRATION.  725 

waiver  concerns  an  interest  in  lands,  and  therefore  may  he 
recorded  to  all  the  world.^ 

45.  A  mortgagee  of  a  defendant  in  execution,  who  has 
failed  to  record  his  ^mortgage  until  after  the  land  has  been 
sold  under  the  execution,  has  no  lien  or  intervening  rights  as 
against  the  purchaser ;  he  can  redeem  under  the  statute  ;  if 
he  fails  to  do  so,  a  court  of  equity  will  not  interpose.^ 

46.  The  record  of  a  mortgage  is  sufficient  notice,  though 
not  mentioned  in  the  alphabet  or  index.^ 

47.  Actual  notice  of  the  amount  secured  by  a  mortgage 
is  binding  upon  a  subsequent  purchaser,  though  there  be  a 
mistake  in  the  registry.* 

48.  But  where  there  is  a  mistake  in  the  registry  of  a  mort- 
gage, as  to  the  amount  secured  by  the  mortgage,  the  registry 
is  notice  only  to  the  extent  expressed  in  the  registry.^ 

49.  The  inscription,  in  the  office  of  the  recorder  of  mort- 
gages, of  any  act  which  gives  notice  to  third  persons  of  a 
mortgage,  fulfils  the  object  of  the  law;  and  the  notice  is 
equally  binding,  whether  derived  from  the  inscription  of  the 
order  appointing  the  tutor  or  curator,  from  the  certificate  of 
his  appointment,  or  from  the  bond,^ 

50.  The  filing  of  a  mortgage  by  a  clerk  in  the  store  of  the 
town  clerk,  in  charge  of  the  town  clerk's  office  in  the  absence 
of  that  officer,  is  sufficient.  It  is  the  duty  of  the  town  clerk, 
and  not  of  the  mortgagee,  to  number  a  mortgage,  and  the 
rights  of  a  mortgagee  cannot  be  impaired  by  the  omission.' 

51.  Where  a  mortgage  to  the  commissioners  for  loaning 
the  U.  a  deposit  fund  was  entered  in  the  book  out  of  the 
order  of  its  date  by  several  years,  it  was  held  to  be  no  notice 
to  a  subsequent  bond  fide  mortgagee.^ 

52.  Where  a  mortgage  to  secure  an  acceptor  of  drafts  is 
duly  made  and  recorded,  and  subsequently  an  indorsement, 
executed  and  acknowledged,  with  the  formalities  of  a  deed, 

1  Clason  V.  Shepherd,  6  Wis.  369.  "  Sauvemet  v.  Landreaux,  1  La.  An. 

2  Smith  V.  Randall,  6  Cal.  47.  219. 

«  Curtis  V.  Lyman,  24  Verm.  338.  '  Dodge  v.  Potter  18  Barb.  193 

1  Frost  V.  Beekman,  1  Johns.  Ch.  «  New  York  Life  Ins.  Co.  v.  W  hue, 
288.  17  N.  Y.  (3  Smith,)  4(j9. 

5  Ibid. 

61* 


726  THE  LAW  OP  MORTGAGES.        [CH.  XXIV. 

is  made  on  the  mortgage,  providing  that  the  mortgage,  in 
all  its  provisions  and  tarmH.  shall  extend  to  the  securing 
of  a  further  sum  ;  the  indorsement  may  be  recorded  in  another 
part  of  the  record  book  than  that  cotftaining  the  original 
mortgage,  without  recording  the  original  again  ;  and,  if  the 
subsequent  record  intelligibly  refer  to  the  first  record,  the 
indorsement  will  be  a  valid  extension  of  the  condition  of 
the  mortgage  as  first  made  and  recorded.^ 

53.  The  error  in  the  description  in  a  mortgage  appear- 
ing by  construction,  its  record  is  notice  to  subsequent  pur- 
chasers that  the  mortgage  is  upon  the  lot  intended  to.be 
designated,  and  they  take  subject  to  it.^ 

54.  A  registry  of  a  mortgage,  affirming  that  it  was  ''re- 
gistered at  the  request  of  Thomas  Bloodgood,  (acting  ex- 
ecutor, &c.)  "  is  bad,  as  not  sufficiently  entering  the  name  of 
the  mortgagee.^ 

55.  Such  entry,  made  in  the  year  1817,  (in  New  York) 
cannot  be  aided  by  the  entry  of  the  name  of  the  mortgagee 
in  the  index  of  mortgages  kept  in  the  clerk's  office.* 

56.  A  clerk^s  minute  of  registry  of  a  mortgage  that  it  was 
duly  proved,  without  information  as  to  the  manner  of  the 
proof  or  acknowledgment,  cannot  enable  a  person  examining 
the  record  to  determine  upon  inspection  whether  the  ac- 
knowledgment or  proof  was  in  fact  sufficient,  and  therefore 
does  not  fulfil  the  object  of  the  statutory  provision.'^ 

57.  M.  took  a  deed  which  was  noted  for  registration  June 
19,  1855.  N.  took  a  mortgage  of  the  same  land  from  the 
same  grantor,  and  it  was  registered  July  7.  The  former 
deed  was  not  registered  until  August  30.  By  the  act  of  1841, 
c.  12,  §  2,  the  notation  for  registry  has  the  same  effect,  in 
giving  priority,  as  registration.  Held,  that  M.  was  entitled 
to  priority,  although  it  appeared  by  parol  that  his  deed  was 
only  intended  as  a  mortgage  to  secure  certain  debts.^ 

^  Choteau  v.  Thompson,  2  Ohio,  (N.  *  Ibid. 

S.)  114.  -^  Ibid. 

■^  Anderson  v.  Baughman,  7  Mich.  "^  Kuggles    v.    Williams,    1     Head, 

69.  (Tenn.)  141. 

3  Peck  V.  Maliams,  10  X.  Y.  6  Seld. 
509. 


CH.  XXIV.]  RBGI8TBATI0N.  707 

'38.  A  mortgage  first  recorded  has  priority,  although  the 
prior  mortgagee,  whose  deed  is  subsequently  record.-d,  fore- 
closes, and  himself  purchases  the  estate,  the  other  mortgagee 
not  being  made  party  to  the  suit.»  So  the  purchaser  on  the 
foreclosure  of  an  unregistered  mortgage  is  not  such  a  bund 
fide  purchaser,  as  to  overreach  a  conveyance  by  the  mort- 
gagor to  a  bond  fide  purchaser  after  the  mortgage,  arifl  before 
foreclosure,  who  was  in  possession  at  the  time  of  the  fore- 
closure and  sale.2  (c)  So,  a  bond  fide  purchaser  will  be  pro- 
tected against  a  prior  unregistered  mortgage,  though  the 
mortgage  is  subsequently  registered  before  the  registration 
of  the  deed  to  the  purchaser.^ 

59.  Where  a  person  mortgages  lands  which  he  holds 
under  a  bond  for  a  deed,  he  conveys  thereby  no  legal  inter- 
est in  the  bond,  but  only  an  equitable  interest ;  and  the  reg- 
istry of  such  mortgage  is  notice  to  no  one.*  (But  see  §  4.) 
So  a  mortgage  without  seal  or  scroll  is  not  constructive 
notice  to  subsequent  purchasers  and  creditors,  though  on 
record  ;  yet  it  transfers  an  equity  to  the  mortgagee,  and, 
being  prior  to  a  mere  covenant  to  mortgage,  must  prevail 
against  such  covenant,  with  or  without  notice.-^  {d)  , 

'  Taylor  v.  Tlioina«,  1   Ilalst.   Ch.  17-5;  Farmers',  &c.  r.  Maltby,  8  Paige, 

331.  VA.     But  gee  I'arktiurgt  V.  Altxamler, 

'^  Hawley  v.  Bennett,  5  Paige,  \(A.  1  .Johns.  Ch.  ?/i4. 

2  Ibi'l.  ■'  PortwfxxJ    V.   Outton,  3   B.  3Ion. 

*  Wing    V.    McDowell,   Walk.    Ch.  247. 


(cj  Jf  a  judgment  has  priority  over  an  unrecorded  mortgage,  the  judg- 
ment purcheiser  also  has  priority,  though  he  buy-s  with  full  notice  of  the 
mortgage.     Smith  v.  Jordon,  2't  Geo.  687. 

Pending  a  suit  for  foreclosure,  the  mortgagee  assigne/I  an  interest  in  the 
mortgage,  which  assignment  was  recorded;  and,  upon  a  sale  of  the  prem- 
ises, under  the  decree  of  foreclosure,  he  became  the  purchaser;  whereupon 
certain  judgment  creditors  levied  upon  the  land,  and  at  the  sheriflT's  sale 
became  the  purchasers.  Held,  in  the  absence  of  any  allegation  to  the  con- 
trary, such  creditors  would  be  presumed  to  have  purchased  in  goo»J  faith, 
without  notice  that  the  assignee  had  not  received  his  share  of  the  purchase- 
money,  under  the  foreclosure.     Norton  v.  Stone,  8  Paige,  222. 

{d)  The  following  .statutorj' provisions  and  judicial  decisions  may  properly 
be  cit<;d,  as  a  sequel  to  the  present  chapter.  I.afer  Mjitut.--  juay  hare 
escaped  notice. 


u 


728  THE  LAW  OF  MORTGAGES.        [CH.  XXIV. 

In  Vermont,  where  the  assignee  of  a  mortgage  brings  a  bill  to  foreclose,  he 
need  not  aver  that  the  assignment  is  recorded.  King  v.  Harrington,  2  Aik. 
33.     See  Norton  v.  Stone,  8  Paige,  222. 

In  New  York,  the  registration  of  the  assignment  of  a  bond  and  mortgage 
is  not  notice  to  the  mortgagor  of  the  assignment.  Reed  v.  Marble,  10  Paige, 
409  ;  Wolcott  V.  Sullivan,  1  Edw.  Ch.  399. 

In  Pennsylvania,  an  act  of  1715  provided,  that  any  mortgage,  or  defeasi- 
ble deed  in  the  nature  of  a  mortgage,  should  be  invalid,  unless  recorded  in 
six  months  from  its  date.  By  an  act  of  1820,  mortgages  take  effect  in  the 
order  of  registration,  except  those  given  back  to  secure  the  price  of  the  land 
conveyed,  for  the  recording  of  which  sixty  days  are  allowed.  A  mortgage, 
though  not  recorded  within  six  months,  has  been  held  valid  against  the  mort- 
gagor and  a  purchaser  with  notice.     2  Hill,  on  R.  P.  448. 

In  Delaware,  mortgages  lodged  for  registry  at  the  same  time  have  priority 
according  to  their  dates ;  if  made  for  the  purchase-money,  sixty  days  are 
allowed  for  recording.  Ibid.  449.  Priority  is  according  to  the  date  of  reg- 
istry. Dela.  Rev.  Sts.  269.  A  mortgage  for  the  price,  if  recorded  in  sixty 
days,  has  precedence  of  a  judgment.     Ibid. 

In  Arkansas,  a  mortgage  gives  no  lien  till  filed  for  record.     Ark.  L.  745. 

In  North  Carolina,  a  mortgage  is  void  against  creditors  or  purchasers, 
unless  proved  or  recorded,  like  other  deeds,  within  six  months.  As  against 
such  creditors,  &c.,  a  title  passes  only  from  registry.  A  mortgagee  in  an 
unrecorded  mortgage  may  redeem  one  which  is  recorded ;  but  the  mortgagor 
loses  his  right  of  redemption.  2  Hill,  on  R.  P.  459.  See  Skinner  w.  Cox,  4 
Dev.  59. 

In  Ohio,  a  mortgage  takes  effect  either  in  law  or  equity  only  from  the 
time  it  is  left  for  record.  The  statute  makes  the  recording  a  part  of  the 
execution.  Doe  v.  Bank,  &c.  3  McLean,  140;  HoUiday  v.  Franklin,  &c.  16 
Ohio,  533;  Brown  v.  Kinkman,  1  Ohio,  State  R.  116  ;  White  v.  Denman, 
Ibid.  110;  Magee  v.  Beatty,  8  Ham.  396.  A  prior  unrecorded  mortgage 
is  postponed  to  a  subsequent  recorded  one,  though  the  second  mortgagee 
had  notice.  Stansell  v.  Roberts,  13  Ohio,  148;  Mayham  v.  Coombs,  14 
lb.  408. 

In  Mississippi,  mortgages  recorded  more  than  thi-ee  months  after  execu- 
tion, take  eflfect  from  their  delivery  to  the  recorder.  Missis.  Rev.  C.  453, 
454.  Of  two  deeds  delivered  to  the  recorder  on  the  same  day,  the  one  first 
executed  has  priority.  Ibid.  The  Statute  of  Mississippi,  giving  validity  to 
mortgages  upon  delivery  for  registry,  does  not  apply  to  mortgages,  executed 
out  of  the  State,  of  property  out  of  the  State.  Prewett  v.  Dobbs,  13  Sm.  & 
M.  431. 

In  Indiana  and  Texas,  a  mortgage  shall  be  recorded  in  ninety  days  from 
its  e»ecution ;  otherwise  it  is  deemed  fraudulent  and  void  against  a  subse- 
quent mortgagee  or  purchaser,  unless  recorded  before  the  deed  of  the  latter. 
2  Hill.  R.  P.  4.60 ;  Hartl.  Dig.  834,  835. 


CH.   XXIV.]  REGISTRATION.  720 

In  North  Carolina,  a  mortgage,  not  recorded  seasonably,  is  invalid  against 
purchasers  subsequent  to  the  mortgage,  whose  oonveyanoes  are  recorded 
before  the  mortgage.  Cowan  v.  Green,  2  Hawks,  384.  *  So  with  e.xecufions 
issued  prior  to  registration.  Davidson  v.  Heard,  2  Hawks,  520.  See  I'ike 
V.  Armstead,  1  Dev.  Ch.  110  ;  Fleming  v.  Burgin,  2  ired.  Ch.  584. 

Under  the  proviso  of  the  Pennsylvania  statute  of  March  28,  1820,  mort- 
gages given  for  the  price  of  the  lands  mortgaged  are  liens  from  tlie  time  oC 
their  execution,  if  recorded  within  sixty  days  therefrom.  Brafton,  &c.  s 
Barr,  164. 

In  Kentucky,  a  mortgage  is  invalid  against  creditors,  unless  acknowledged 
and  deposited  for  record  within  sixty  days  from  its  execution.  Stephens  v. 
Barnett,  7  Dana,  257.  If  proved  or  acknowledged,  and  recorded  within 
sixty  days,  a  mortgage  proves  itself.     Bibb  v.  Williams,  4  Monr.  5  71). 

As  to  registration  in  Michigan,  see  Beals  v.  Hale,  4  How.  U.  S.  37.  See. 
also,  Thompson  v.  Mack,  Harring.  Ch.  150. 

In  South  Carolina,  a  mortgage  is  good  against  subsequent  judgment  cred- 
itors, without  registration  or  notice.  Coleman  v.  Bank,  &c.  2  Strobli.  E(|. 
285.     See  Ross  i\  Bank,  &c.  3  Strobh.  Eq.  245. 

As  to  the  law  in  Alabama,  Herbert  v.  Ilanrick,  16  Ala.  581  ;  IIarbrisf>n  c. 
Harrell,  19  Ala.  753;  Smith  v.  Mobile,  &c.  21  Ala.  125;  New  Jersey,  N.  J. 
L.  1858,  p.  90;  Indiana,  Ind.  Sts.  1859,  p.  106;  New  York,  N.  Y.  &c.  v. 
Staats,  21  Barb.  570;  Maryland^ Pannell  v.  Farmers',  &c.  7  Har.  &  J.  202. 

In  Maryland,  where  an  omission  to  record  a  mortgage  has  occurred,  with- 
out fraudulent  design,  the  mortgage  will  be  decreed  to  be  recorded,  saving 
the  rights  of  subsequent  purchasers  and  creditors,  without  notice  ;  and, 
upon  a  bill  by  the  mortgagee,  a  sale  of  the  mortgagor's  interest  at  tiie  time 
of  its  execution  may  be  decreed,  with  a  like  saving.  Sprigg  v.  Lyles,  2 
Gill  &  J.  446.  But  where  the  security  afforded  by  an  unrecorded  mort- 
gage has  been  abandoned  for  other  security,  given  by  the  debtor  and  ac- 
cepted by  the  creditor,  the  mortgage  will  not  be  decreed  to  be  recorded. 
Ibid. 


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